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257  So.  Spring  St.,  Room  210 
MUtual  4473 


■iiS 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


5E  tW 


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n 


MINING  AND  WATER  CASES 
ANNOTATED 


A  COLLECTION  OF  LEADING  AMERICAN,  CANADIAN  AND 

ENGLISH   CASES    ON    THE    TOPICS  OF  IRRIGATION, 

DRAINAGE,     RECLAMATION,     MINING,     OIL, 

GAS  AND  RELATED  SUBJECTS,  WITH 

ANNOTATIONS,  INDEXES 

AND    FORMS 


By  JAMES  M.  KERR 

OF  THE  CALIFORNIA  BAR 
EDITOR  OF    KERR'S  CYCLOPEDIC  CALIFORNIA  CODES 
AND 
THE  PUBLISHER'S  EDITORIAL  STAFF 


VOLUME  I 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1912 


Copyright,  1912,  by 
Callaghan  and  Company 


PREFACE. 


The  Mining  and  Water  Cases  Annotated  are,  as  their  name 
implies,  a  series  of  selected  annotated  cases  upon  the  topics 
of  Irrigation,  Reclamation,  Drainage,  Mines,  Oil,  Gas  and  re- 
lated subjects. 

The  selection  of  cases  for  the  series  will  be  with  a  two  fold 
purpose:  First  to  present  all  the  current  and  important  decis- 
ions upon  the  topics  within  the  scope  of  the  series;  and  second, 
to  afford  the  widest  possible  range  of  annotations.  Cases  upon 
points  which  have  already  been  annotated  will  not  be  printed 
when  to  afford  space  for  them  would  exclude  annotations,  it 
being  the  desire  of  the  publishers  to  make  the  annotations  the 
prominent  feature  of  the  series.  Canadian,  English  and  other 
foreign  cases  will  be  included,  especial  attention  being  given  to 
the  law  of  Canada. 

The  annotations  will  be  carefully  and  conscientiously  done 
by  competent  editors  under  a  definitely  formulated  plan 
whereby  the  series,  as  it  enlarges,  will  become  a  working 
treatise  on  the  law  of  Waters,  Mines,  Oil  and  Gas.  Whether 
the  notes  are  monographic  or  closely  confined  in  scope  the  same 
care  will  be  exercised  in  their  compilation  and  arrangement, 
they  will  be  carefully  analyzed,  and  will  be  the  result  of  a 
thorough  examination  of  the  authorities. 

Practical  forms  will  be  included  from  time  to  time.  For 
example,  in  this  volume  are  presented  forms  for  the  organization 
of  a  drainage  district  under  the  laws  of  Illinois  upon  which 
many  of  the  modern  drainage  statutes  are  based. 

Each  volume  will  contain  carefully  compiled  indexes  of 
cases,  notes  and  forms. 

In  conclusion  the  publishers  wish  to  express  their  apprecia- 
tion of  the  valuable  services  rendered  upon  this  volume  by  Mr. 
Herbert  C.  Lust  of  the  Chicago  Bar,  by  whom  a  large  part  of 
the  material  was  collected  and  to  whose  efforts  are  in  a  great 
measure  due  its  present  form. 

CALLAGHAN  AND   COMPANY. 
Chicago,  January,  1912. 


TABLE  OF  CASES  REPORTED 


A. 

Acme  Oil  Company,  Perry  v.  (44  Ind.  App.  207,  88  N.  E.  859) 99 

Alexander,  Mansfield  Gas  Co.  v.   (—  Ark.  — ,  133  S.  W.  837) 286 

Angiola  Water  Co.,  Lower  Tulle  River  Ditch  Co.  v.  (149  Cal.  496,  86  Pac.  1081)   280 
Appanoose  County,  Board  of  Supervisors  of,  Chicago,  B.  &  Q.  R.  Co.  v.    (170 

Fed.   665)     459 

Atkinson,  J.  E.  Crowe  Coal  &  Mining  Co.  v.  ( —  Kan.  —,116  Pac.  490) 446 

Attorney  General  v.  Dominion  Coal  Co.,  Ltd.   (44  N.  S.  423) 671 

Avery  v.  Johnson   (59  Wash.  332,  109  Pac.  1028)    531 

B. 

Bannan  v.  Graeff   ( 186  Pa.  St.  648,  40  Atl.  805)    548 

Barton  v.  Laclede  Oil  &  Mining  Co.  (—  Okla.  — ,  112  Pac.  965) 259 

Beck  v.  Bono  (59  Wash.  479,  110  Pac.  13)    222 

Bellevue  Gas  &  Oil  Co.  v.  Pennell   (76  Kan.  785,  92  Pac.  1101) 396 

Board  of  Supervisors  of  Appanoose  County,  Chicago,  B.  &  Q.  R.  Co.  v.    (170 

Fed.   665)     459 

Board  of  Supervisors  of  Wright  County,  Ross  v.    (128  Iowa  427,   104  N.  W. 

506)     358 

Bona,  Beck  v.  (59  Wash.  479,  110  Pac.  13)    222 

Burch,  Risch  v.   (—  Ind.  — ,  95  N.  E.  123)    325 

Butte  City  Smoke-House  Lode  Cases  (6  Mont.  397,  12  Pac.  858) 520 

C. 

Caldwell,  Shaw  v.    (—  Cal.  — ,   115  Pac.  941 ) 558 

Carnes  v.  Dalton  ( —  Or.  — ,  110  Pac.  170)    207 

Chapman,  People  ex  rel.,  v.  Sacramento  Drainage  District    (155  Cal.  373,   103 

Pac.    207 )     107 

Charles  West,  Attorney  General  of  the  State  of  Oklahoma,  Appellant,  v.  Kansas 

Natural  Gas  Co.  (—  U.  S.  — ,  31  Sup.  Ct.  564) 184 

Charlton  v.  Kelly    (2  Alaska  532)    293 

Christy  v.  Union  Oil  &  Gas  Co.    ( —  Okla.  — ,  114  Pac.  740)    254 

Chicago,   B.   &  Q.  R.   Co.  v.   Board  of   Supervisors  of  Appanoose  County    (170 

Fed.    665)     459 

Chicago,  Rock  Island  &  Pacific  Railway  Co.  v.  Davis    (26  Okla.  434,  109  Pac. 

214)      566 

Condor  Water  &  Power  Co.  v.  Enterprise  Mining  Co.   ( —  Or.  — ,  113  Pac.  858)  .   412 

Cranston,  Wheelden  v.    ( 12  B.   C.  489 )    659 

Crowe  Coal  &  Mining  Co.,  J.  E.,  v.  Atkinson   ( —  Kan.  — ,  116  Pac.  490)    446 

D. 

Dalton,  Carnes  v.   ( —  Or.  — ,  110  Pac.  170)    207 

Davis,  Chicago  Rock  Island  &  Pacific  Railway  Co.  v.    (26  Okla.  434,   109  Pac. 

214)     566 

Davis,  Hollett  v.    (54  Wash.  326,   103  Pac.  423) 415 

Davis,  Jennings  v.    ( 187  Fed.  703)    647 

(ix) 


X 


"Wateb  and  Mineral  Cases. 


Dominion  Coal  Co.,  In  re   (42  N.  S.  108)    704 

Dominion  Coal  Co.,  Ltd.,  Attorney  General  v.   (44  N.  S.  423)    671 

Doughton,   United   States   v.    (186   Fed.   226)     736 

Dowdy,  Zeiger  v.  (—  Ariz.  — ,  114  Pae.  565)    409 

Doyle,  Grobe  v.   (12  B.  C.  191)    664 

Duckworth  v.  Watsonville  Water  &  Light  Co.  (158  Cal.  206,  110  Pac.  927)  ... .   128 
Duckworth  v.  Watsonville  Water  &  Light  Co.   (150  Cal.  520,  89  Pac.  338)  ... .    140 

E. 
Enterprise  Mining  Co.,  Condor  Water  &  Power  Co.  v.  (—  Or.  — ,  113  Pac.  858)  .  412 
Enterprise  Mining  Co.,  Grant's  Pass  Banking  &  Trust  Co.  v.    (—  Or.  —,113 

Pac.   858)     412 

Express  Oil  Co.,  McLemore  v.    (—  Cal.  — ,  112  Pac.  59) 232 

F. 

Flynn  Group  Min.  Co.  v.  Murphy   ( 18  Idaho  266,  109  Pac.  851) 619 

Funchion,  Zimmerman  v.    (89  C.  C.  A.  53,  161  Fed.  859) 437 

G. 

Garnet  Ditch  &  Reservoir  Company  v.   Sampson    (48   Colo.  285,   110  Pac.   79, 

1136)    61° 

Goodspeed  Gas  &  Oil  Co.,  Mound  City  Brick  &  Gas  Co.  v.    (—  Kan.  — ,  109 

Pac.    1002)      244 

Gladys  City  Oil,  Gas  &  Manufacturing  Co.  v.  Right  of  Way  Oil  Co.  (—  Tex.  — , 

137  S.  W.  171)    4" 

Graeff,  Bannan  v.    ( 186  Pa.  St.  648,  40  Atl.  805)    548 

Grant's  Pass  Banking  &  Trust  Co.  v.  Enterprise  Mining  Co.    ( —  Or.  — ,  113 

Pac.    858)     412 

Gray  v.  New  Mexico  Pumice  Stone  Co.   (—  N.  M.  — ,  110  Pac.  603) 157 

Grobe  v.  Doyle   (12  B.  C.  191 )    664 

GufTey  Petroleum  Co.,  J.  M.,  v.  Murrel,   Tax  Collector  (—  La.  — ,  53  So.  704)  .   380 

H. 

Hackett  v.  Larimer  &.  Weld  Reservoir  Company  (48  Colo.  178,  109  Pac.  965) 224 

Hall  v.  Hood  River  Irrigation  District   (—  Or.  — ,  110  Pac.  405) 151 

Harper  v.  Hill    (—  Cal.  — ,   113  Pac.   162)    585 

Hewes,  Vanderwork    (Territory  of  New  Mexico,  Intervenor)   v.    (15  N.  M.  439, 

110    Pac.    507)     351 

Hill,  Harper  v.  (—  Cal.  — ,  113  Pac.  162)    585 

Hinderlider,  Young  v.    (15  N.  M.  666,  110  Pac.  1045) 338 

Hollett  v.   Davis    (54  Wash.  326,   103  Pac.  423)    415 

Hood   River   Irrigation  District,  Hal]  v.    (—  Or.  — ,  110  Pac.  405) 151 

Hull  v.  Sangamon  River  Drainage  District   (219  111.  454,  76  N.  E.  701) 593 

I. 

In  re  Dominion  Coal  Co.    (42  N.  S.  108)    704 

Inter-Mountain  Mining  Co.,  Washburn  v.    (—  Or.  — ,  109  Pac.  382) 90 

J. 

J.  E.  Crowe  Coal  &  Mining  Co.  v.  Atkinson  ( —  Kan.  — ,  116  Pac.  490) 446 

Jennings   V.   Davis    (187    Fed.   703)     647 

J.  M.  GufTey  Petroleum  Co.  v.  Murrel,  Tax  Collector   (—  La.  — ,  53  So.  704)  ..   C80 


Table  op  Cases  Beported.  xi 

Johnson,  Avery  v.   (59  Wash.  332,  109  Pac.  1028)    531 

Junila,  Washoe  Copper  Co.  v.   ( —  Mont.  — ,  115  Pac.  917)    451 

K. 

Kansas  Natural  Gas  Co.,  Charles  West,  Attorney  General  of  the  State  of  Okla- 
homa, Appellant,  v.  (—  U.  S.  — ,  31  Sup.  Ct.  564)    184 

Kelly,   Charlton  v.    (2  Alaska  532)    293 

L. 

Laclede  Oil  &  Mining  Co.,  Barton  v.  (—  Okla.  — ,  112  Pac.  965)    259 

Larimer  &  Weld  Reservoir  Company,  Hackett  v.   (48  Colo.  178,  109  Pac.  965)  ..  224 

Lee,  United  States  v.   (15  N.  M.  382,  110  Pac.  607)    479 

Lovell,  Seibert  v.  (92  Iowa  507,  61  N.  W.  197) 261 

Lower  Tulle  River  Ditch  Co.  v.  Angiola  Water  Co.  (149  Cal.  496,  86  Pac.  1081)  .  280 

M. 

Mansfield  Gas  Co.  v.  Alexander  (—  Ark.  — ,  133  S.  W.  837)    286 

McLemore  v.  Express  Oil  Co.    (—  Cal.  — ,  112  Pac.  59) 232 

Morgan  v.  Myers   (—  Cal.  — ,  113  Pac.  153)    494 

Mound  City  Brick  &  Gas  Co.  v.  Goodspeed  Gas  &  Oil  Co.   (—  Kan.  — ,  109  Pac. 

1002)     244 

Munday,  United  States  v.   ( 186  Fed.  375)    722 

Murphy,  Flynn  Group  Min.  Co.  v.   (18  Idaho  266,  109  Pac.  851) 619 

Murray  v.  White    (—  Mont.  — ,  113  Pac.  754)    538 

Murrel,  Tax  Collector,  J.  M.  Guffey  Petroleum  Co.  v.  (—La.  — ,  53  So.  704)  . .  380 
Myers,  Morgan  v.    ( —  Cal.  — ,  113  Pac.   153)    494 

N. 

National  Mines  Co  v.  Sixth  Judicial  District  Court  Humboldt  County   ( —  Nev. 

— ,  116  Pac.  996)    169 

New  Mexico  Pumice  Stone  Co.,  Gray  v.  (—  N.  M.  —   110  Pac.  603) 157 

Nome  &  Sinook  Co.  v.  Snyder  ( 187  Fed.  385)   202 

O. 

Ohio  Oil  Co.,  Rupel  v.   (—  Ind.  — ,  95  N.  E.  225)    331 

Oregon  Short  Line  Railroad  Company  v.  Pioneer  Irrigation  District   (16  Idaho 

578,  102  Pac.   904)     1 

P. 

Pennell,  Bellevue  Gas  &  Oil  Co.  v.  (76  Kan.  785,  92  Pac.  1101) 396 

People  ex  rel.   Chapman  v.   Sacramento  Drainage  District    (155   Cal.   373,   103 

Pac.   207)     107 

Perry  v.  Acme  Oil  Company  (44  Ind.  App.  207,  88  N.  E.  859) 99 

Pioneer  Irrigation  District,  Oregon  Short  Line  Railroad  Company  v.   (16  Idaho 

578,    102   Pac.   904)     1 

R. 

Reisner,  Simms  v.    (—  Tex.  Civ.  — ,  134  S.  W.  278)    238 

Right  of  Way  Oil  Co.,  Gladys  City  Oil,  Gas  &  Manufacturing  Co.  v.    (—  Tex. 

— ,   137   S.  W.   171)    499 

Risch  v.  Burch    (—  Ind.  — ,  95  N.  E.   123)    325 

Rooney,  Van  Ness  v.   (—  Cal.  — ,  116  Pac.  392)    270 

Ross  v.  Board  of  Supervisors  of  Wright  County  (128  Iowa  427,  104  N.  W.  506).  358 

Rupel  v.  Ohio  Oil  Co.   (—  Ind.  — ,  95  N.  E.  225 )    331 


xii  Water  and  Mineral  Cases. 

s. 

Sacramento  Drainage  District,  People  ex  rel.  Chapman  v.    (155  Cal.  373,  103 

Pac.    207)     107 

Sampson,  Garnet  Ditch  &  Reservoir  Company  v.    (48  Colo.  285,   110  Pac.  79, 

1136)     61° 

Sangamon  River  Drainage  District,  Hull  v.    (219  111.  454,  76  N.  E.  701) 593 

Seibert  v.  Lovell  (92  Iowa  507,  61  N.  W.  197)    261 

Shaw  v.  Caldwell   (—  Cal.  — ,  115  Pac.  941)    558 

Simms  v.  Reisner   (—  Tex.  Civ.  — ,  134  S.  W.  278)    238 

Sinook  Co.,  Nome  &,  v.  Snyder   ( 187  Fed.  385)    202 

Sixth  Judicial  District  Court  Humboldt  County,  National  Mines   Co.  v.    (— 

Nev.  — ,   116  Pac.  996) 169 

Snyder,  Nome  &  Sinook  Co.  v.   ( 187  Fed.  385)    202 

U. 

Union  Oil  &  Gas  Co.,  Christy  v.  (—  Okla.  — ,  114  Pac.  740) 254 

United   States   v.   Doughton    (186   Fed.    226) 736 

United  States  v.  Lee  ( 15  N.  M.  382,  110  Pac.  607)    479 

United  States  v.  Munday   (186  Fed.  375)    722 

V. 

Vanderwork    (Territory  of  New  Mexico,  Intervenor)   v.  Hewes    (15  N.  M.  439, 

110  Pac.  567)  351 

Van  Ness  v.  Rooney  (—  Cal.  — ,  116  Pac.  392)  270 

W. 

Washburn  v.  Inter-Mountain  Mining  Co.   (—  Or.  — ,  109  Pac.  382) 90 

Washoe  Copper  Co.  v.  Junila  (—  Mont.  — ,  115  Pac.  917) 451 

Watsonville  Water  &  Light  Co.,  Duckworth  v.   (158  Cal.  206,  110  Pac.  927)...  128 

Watsonville  Water  &  Light  Co.,  Duckworth  v.   (150  Cal.  520,  89  Pac.  338)  ...  .  140 

Weld  Reservoir  Company,  Larimer  &,  Hackett  v.   (48  Colo.  178,  109  Pac.  965)  ..  224 
West,  Charles,  Attorney  General  of  the  State  of  Oklahoma,  Appellant,  v.  Kansas 

Natural  Gas.  Co.  (—  U.  S.,  31  Sup.  a.  564)    184 

Wheelden  v.  Cranston   (12  B.  C.  489)    659 

White.  Murray  v.    (—  Mont.  — ,   113  Pac.  754)    538 

Wright  County,  Board  of  Supervisors  of,  Ross  v.    (128  Iowa  427,  104  N.  W. 

°506)    358 

Y. 

Young  v.  Hinderlider   (15  N.  M.  666,  110  Pac.  1045)    338 

Z. 

Zeiger  v.  Dowdy   (—  Ariz.  — ,  114  Pac.  565)    409 

Zimmerman  v.  Funchion    (89  C.  C.  A.  53,  161  Fed.  859)    437 


WATER  AND  MINERAL  CASES 

ANNOTATED 


VOL.    I 


OREGON  SHORT  LINE  RAILROAD  COMPANY  v.  PIONEER  IRRIGATION 

DISTRICT  et  al. 

[Supreme  Court  of  Idaho,  opinion  filed  May  26,  1909;  rehearing  denied  July  8,  1909.] 
16  Idaho  578,   102  Pac.  904. 

1.  Irrigation  District — Land  to  Be  Included  in — Use  of  Not  Material. 

The  statute  of  this  state  authorizes  the  board  of  county  commissioners  to  include 
within  the  boundaries  of  an  irrigation  district  all  lands  which  in  their  natural  state 
would  be  benefited  by  irrigation  and  are  susceptible  of  irrigation  by  one  system ;  and 
this  is  true  regardless  of  the  question  as  to  what  particular  use  is  being  made  of 
any  particular  tract  or  piece  of  land  at  the  time  the  district  is  organized. 

2.  Railway  within    District — Confirmation — Estoppel. 

Where  a  railroad  corporation  owns  right  of  way  and  station  grounds  within  the 
boundaries  of  a  proposed  irrigation  district,  and  quietly  sits  by  and  makes  no  objection 
or  protest  to  the  organization  of  such  district  or  the  confirmation  of  the  same,  such 
railroad  company  is  concluded  by  the  action  of  the  board  of  county  commissioners 
in  including  such  right  of  way  and  station  grounds  within  the  district  and  by  the 


NOTE. 

Irrigation    Districts,   Formation    and 
Management   of. 

I.     In  General,  5. 

A.  Legislative  Power,  5. 

1.  General  Principles,  5. 

2.  Changes     of   Law — Retro- 

active Effect,  6. 

3.  Limitation    of     Power     of 

Legislature,  6. 

B.  Legislative  Discretion,  6. 

C.  Constitutionality,  6. 

1.  General  Principles,  6. 

2.  California  Statutes,  8. 

3.  Colorado  Statute,  9. 

4.  Idaho  Statute,  9. 

5.  Nebraska  Statute,  9. 

6.  Washington  Statute,  10. 

D.  Unconstitutional  Acts,  10. 

E.  Construction    of    Statutes,. 

11. 

1.  General  Rule,  11. 

2.  California  Statute— Wright 

Act,  11. 

3.  Idaho  Act,  12. 

4.  Confirmation  Act,  12. 

F.  De  Facto  Districts,  12. 


G.     Public  Use,  13. 
H.     Public  Municipal    Corpora- 
tions, 14. 

1.  Generally,  14. 

2.  Property      Exempt     from 

Execution,  16. 

3.  Officers  of,  Are  Public  Offi- 

cers, 17. 

4.  Powers  of  District,  17. 

I.  Right  of  Eminent  Domain* 
17. 

Generally,  17. 

Right  of  Way  over  Private 
Land,  19. 

Right  of  Way  over  Public 
Land,  19. 

Complaint  in  Condem- 
nation, 20. 

Condemning  Specific  Piece 
of  Property — Determi- 
nation, 21. 

Condemnation  of  Appropri- 
ated Waters,  etc.,  21. 

7.  Jury  Trial,  22. 

8.  Damages,  22. 

J.      Interest  and  Property  in  the 

Water,  23. 
K.    Bankruptcy  and  Dissolution, 

24. 


f>. 


Water  and  Mineral  Cases. 


[Idaho 


judgment  of  the  district  court  confirming  such  district,  and  cannot  attack  the  juris- 
diction of  the  district  to  assess  such  lands  on  the  ground  that  the  same  were  not 
benefited,  in  a  collateral  proceeding  (following  Knowles  v.  New  Sweden  Irrigation 
District,  16  Idaho,  217,  101  Pac.  81). 

3.  Right  of  Way  and  Station — Board  Determining  Benefit — Action  Final. 
Whether  the   right  of  way  and  station  grounds   of  a   railroad   company  will   be 

benefited  by  a  system  of  irrigation  works  within  an  irrigation  district  is  committed 
to  the  judgment  of  the  board  of  county  commissioners;  and  when  such  board  ha« 
determined  that  such  land  will  be  benefited,  and  includes  such  land  within  the 
boundaries  of  such  district,  the  action  of  such  board  is  final  and  conclusive  against 
a  collateral  attack. 

4.  Right  of  Way  and   Depot  Grounds — Question  of  Benefit — How  Determined. 
The  mere  fact  that  the  railroad  company  for  the  time  being  is  using  its  land  for 

right  of  way  and  depot  purposes  is  not  a  reason  why  such  land  will  not  be  benefited 
by  a  system  of  irrigation  works  controlled  by  an  irrigation  district,  as  the  question 
of  benefits  is  to  be  determined  with  reference  to  the  natural  state  and  condition  of 
the  land  and  not  with  reference  to  the  use  being  made  of  such  land. 


II.    Proceedings  for  Organization, 
25. 

A.  In  General,  25. 

B.  Petition,  25. 


7. 
8. 


Generally,  25. 
Boundaries,  26. 

a.  Generally,  26. 

b.  Modification  of,  27. 
Signers,  28. 

a.  Generally,  28. 

b.  ."Owners"  Construed, 

28. 

c.  "Dummy"  Owners,  29. 

d.  Owners  of  City  Lots, 

29. 

e.  Tenants  in  Common, 

30. 

f.  Married  Women,  30. 

g.  Purchasers  of  Railroad 

Lands,  30. 
h.     Purchasers    of    School 

Lands,  30. 
Bond,  31. 

a.  Defective,  31. 

b.  Conditions  of,  31. 
Publication  of  Petition,  31. 
Notice,  32. 

a.  Generally,  32. 

b.  By  Petitioners,  32. 

c.  Form  of,  33. 

d.  Description  of  District 

in,  33. 

e.  Service  of,  33. 
Presentation  at  "Regular 

Meeting,"  34. 
Election,  34. 

a.  Generally,  34. 

b.  Proclamation  for,  34. 

c.  Election  Precincts,  34. 

d.  Keeping  Open  Polls,  35. 

e.  Canvassing   Votes  and 

Declaring  Result,  35. 


(1) 
(2) 

(3) 


(4) 


Territorial  Extent  of  Dis- 
trict, 35. 

1.  Decision  of  Board  of  Super- 
visors Conclusive,  35. 

2.  Inclusion,  37. 

a.  Generally,  37. 

b.  Change  of  Boundaries, 
37. 

o.     Assessment  of  Benefits, 
37. 
Idaho  Act,  37. 
Assessing  Tracts  and 

Listing,  38. 
Railroad    Right    of 

Way,       Stations, 

etc.,  38. 
Constitutionality  of 

Statute,  39. 

d.  PubUc  Lands,  39. 

e.  City  or  Town,  39. 

f.  Waiver  of  Right,  40. 

3.  Exclusion,  40. 

a.  Generally,  40. 

b.  After  Organization,  40. 

c.  Land  Already    under 

Ditch,  41. 

d.  Nonirrigable  Lands,  41. 

D.  Watering  Lands  Out  of  Dis- 

trict, 42. 

E.  Costs  and  Expenses,  42. 

III.     Confirmation  Proceedings,  43. 

A.  In  General,  43. 

B.  Constitutionality,  43. 

C.  Construction,  44. 

D.  Nature  of  Proceedings,  44. 

E.  Directors  May  Institute,  45. 

F.  Notice  of,  45. 

1.  Generally,  45. 

2.  Contents  of,  Description, 

45. 

3.  Personal    Service    of,   Not 

Necessary,  46. 


1909]  Obegon  Shoet  Line  R.  Co.  v.  Pioneee  Iekigation  Dist.      3 

6.     Determining  Benefits — Board  Not  Limited  to  Agricultural  Land. 

In  determining  whether  lands  will  be  benefited  by  a  system  of  irrigation  works, 
the  board  of  county  commissioners  is  not  limited  to  lands  which  will  be  used  for 
agricultural  purposes  or  upon  which  water  will  be  beneficially  used,  or  to  lands 
devoted  to  any  particular  use;  but  the  board  is  empowered  and  given  jurisdiction 
to  determine  whether  all  lands  within  the  district  will  be  benefited,  without  reference 
to  the  use  to  which  the  same  will  be  put. 

6.  Petition   for   Organization — Boundaries — Description    of  Tracts. 
Section  2  of  the  Laws  of   1899,  p.  408,  as  amended  by  Laws   1901,  p.   191,   §    1, 

requires  the  petition  for  the  organization  of  an  irrigation  district  to  describe  the 
boundaries  of  such  district,  but  does  not  require  the  petition  to  contain  a  specific 
and  accurate  description  of  each  tract  or  legal  subdivision  of  land  within  the 
district. 

7.  Notice — Of  Presentation  and    Hearing — Description    in. 

Such  statute  does  not  require  that  the  notice  given  of  the  presentation  of  the 
petition  or  the  notice  of  the  time  when  the  same  will  be  heard  contain  a  description 
of  the  different  tracts  or  legal  subdivisions  within  the  boundaries  of  the  proposed 
district. 


G.    Jurisdiction,  46. 

1.  Generally,  46. 

2.  Questions  Reviewable,  47. 

3.  Illegal  Bond  Issue,  47. 

H.     Errors,  etc.,  Disregarded, 

47. 
I.      Issues,  48. 

1.  Generally,  48. 

2.  Defense  of  Fraud,  48. 

3.  Burden  of  Proof,  48. 

J.     Decree  of  Confirmation,  49. 

1.  Generally,  49. 

2.  Collateral  Attack,  49. 

3.  Bond  Issue,  49. 

4.  Obtained  by  Fraud,  49. 

5.  Res  Adjudicata,  50. 
K.    New  Trial,  50. 

L.     Right  of  Appeal,  50. 
M.   Action  to  Set  Aside,  50. 

IV.     Attack  on  District  Bonds,  etc., 
51. 
A.     In  General,  51. 
By  District,  51. 
By  Individual,  51. 
By  the    People — Quo  War- 
ranto, 52. 
Collateral  Attack,  52. 
Limitation  of  Action,  53. 
Officers  of — Powers  and  Duties, 

53. 
A.     In  General,  53. 

Board  of  Directors,  54. 

1.  Generally,  54. 

2.  Duties  and  powers  of,  54. 

a.  Generally,  54. 

b.  Under  California  Laws 
— Election  at  Large, 
54. 

c.  Under  Nebraska  Laws, 
54. 


B. 
C. 
D. 

E. 
F. 


B. 


d.  Under  Oregon  Laws, 
55. 

e.  To    Make  Plans  and 
Specifications,  55. 

Collector,  56. 
Treasurer,  56. 

Superintendent   of    Irriga- 
tion, 57. 
Salaries  of,  57. 

1.  Generally,  57. 

2.  Mandamus  to  Enforce,  57. 
VI.    Bonds  of,  58. 

A.  In  General,  58. 

B.  Attack  on,  58. 

1.  Generally,  58. 

2.  Action  to  Cancel,  58. 

a.  Generally,  58. 

b.  Complaint,  Allegations 

in,  58. 
c     Limitation  of  AetionB, 
59. 

3.  Action     to     Annul     Tax 

Sale,  etc,  59. 

C.  Bona  Fide  Purchasers,  59. 

1.  Generally,  59. 

2.  Recovery  of  Consideration, 

60. 

D.  Confirmation  Proceedings, 

61. 

1.  Generally,  61. 

2.  Board  of    Directors    May 

Bring  Action,  61. 

3.  Landowner     May     Bring 

Action,  62. 

4.  Notice,  62. 

5.  Petition  and  Prayer,  62. 

6.  Burden  of  Proof,  62. 

7.  Decree,  63. 

E.  Coupons,  Payment  of,  63. 

F.  Date  of  Issue,  63. 


Water  and  Mineral  Cases. 


[Idaho 


8.  Examining  Tracts — Apportioning  Benefits. 

Section  11  of  the  act  (Laws  1899,  p.  414),  as  amended  by  Act  March  18,  1901 
(Laws  1901,  p.  194,  §  2),  requires  the  board  to  examine  all  tracts  and  legal 
subdivisions  within  the  boundaries  of  the  district,  and  to  apportion  the  benefits 
according  to  their  judgment. 

9.  Apportioning    Benefits — Description   of   Tracts — Unnecessary   When. 

This  provision  of  the  statute,  which  requires  the  board  to  examine  each  particular 
legal  subdivision  or  tract  within  the  district  and  apportion  the  benefits,  does  not 
require  the  beard,  in  designating  the  benefits,  to  particularly  and  specifically 
describe  each  tract  or  fractional  part  of  such  legal  subdivision  according  to  the 
separate  ownership  thereof  where  the  benefits  accruing  to  all  parts  of  such  legal 
subdivision  are  the  same. 


10. 


Necessary  When. 


If,  however,  in  assessing  the  benefits,  the  board  determine  that  any  part  or  tract 
less  than  a  legal  subdivision  be  benefited  differently  from  the  remainder  or  any  other 
part  or  tract,  then  the  board  is  required  to  designate  and  describe  the  benefit  to  such 
particular  tract  or  fractional  part. 
11.    Proceeding  in  Rem — Lands  Including  Railway. 

The  benefits  fixed  by  the  board  are  laid  against  the  land,  the  proceeding  is  a 
proceeding  in  rem,  and  the  benefits  have  reference  to  the  land;  and  where  the  board 
in  preparing  a  list  of  the  lands  against  which  benefits  are  laid,  designates  upon 
such  list  the  legal  subdivisions  across  which  the  right  of  way  of  a  railroad  company 


T. 


J. 
K. 


G.    De  Facto  District,  64. 
H.     Disposition  of  Methods  of, 
64. 

1.  California  Statute,  64. 

2.  Nebraska  Statute,  65. 

3.  Washington  Statute,  65. 
Election  for  Bond  Issue,  66. 

1.  Generally,  66. 

2.  Notice,  66. 

3.  Second  Election,  66. 
Exclusion  of  Territory,  67. 
Procedure  to  Enforce,  67. 

1.  Action  at  Law,  67. 

2.  Mandamus,  68. 

a.  To  Compel  Payment, 
68. 

b.  To    Compel    Levy    of 
Assessment,  68. 

Form  of,  69. 
Interest  on,  69. 

I        0  \NCE   OF,    70. 

Lien  on  Lands,  71. 
Supplying    Water    for    Use 

Outside  of  District,  72. 
Term  of,  72. 
VII.     Ass  i      •  ,  72. 

A.  As  to,  Generally,  72. 

B.  As  to  Levy  by  Board   of  Di- 

rectors, 73. 

1.  Generally,  73. 

2.  California  Act,  73. 

3.  Idaho  Act,  74. 

C.  As  to  Neglect  or  Refusal  to 

Levy,  74. 

1.  Duty  of  County  Board,  74. 

2.  Mandamus,  75. 

D.  Annual  to  Pay  Interest,  Dis- 

cretion, 75. 


E. 
F. 
G. 

H. 

I. 

J. 

K. 

L. 

M. 

N. 


L. 

M. 

N. 

0. 

P. 

Q- 


P. 
Q. 


VIII. 


A. 
B. 


C. 


Basis  of  Assessment,  76. 

Confirmation,  78. 

Current  Expenses  to  Meet, 

79. 
Description  of  Land,  79. 
Election,  79. 
Excessive  Levy,  79. 
Illegal  Levy,  80. 
Lien  on  Land,  81. 
Misnomer,  81. 
Property  Subject  to,  81. 

1.  Lands  within  District,  81. 

2.  Lands  Detached  from  Dis- 

trict, 82. 

3.  Telegraph  Poles  and  Wires, 

83 

4.  Pueblo  Lands  of  City,  83. 

5.  Railroad  Right  of  Way,  83. 

6.  United  States  Lands,  83. 
Sale    of    Land    to    Enforce 

Payment,  84. 

1.  In  California,  84. 

2.  In  Washington,  84. 

3.  Misnomer— Effect    on  Tax 

Deed,  85. 

4.  Restraining  Sale,  85. 
Segregation  of  Fund,  85. 
Validity — District  de  Jure, 

85. 
Powers,  Duties  and  Liabili- 
ties, 86. 
The  Powers  of,  86. 
The  Duties  of,  86. 

1.  Generally,  86. 

2.  To  Supply  Water,  86. 
The  Liabilities  of,  89. 

1.  Generally,  89. 

2.  To  Be  Sued,  89. 

3.  As  a  Nuisance,  89. 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.       5 


passes,  and  designates  the  rate  per  acre  apportioned  to  each  legal  subdivision,  it 
is  a  substantial  compliance  with  the  statute,  and  is  not  void  because  the  right  of 
way  is  not  particularly  and  separately  described. 

12.  List — Including    Railway — Notice   of   Benefit — Collateral    Attack. 

The  list  thus  prepared  is  notice  to  the  railway  company  of  the  benefits  assessed 
against  each  legal  subdivision,  of  which  its  right  of  way  is  a  part;  and  where  the 
list  has  been  thus  prepared,  and  no  objection  is  made  by  the  company  on  account 
of  a  defective  description  or  want  of  description  at  the  time  of  the  hearing  of  the 
confirmation  of  said  district,  the  owner  of  such  property  is  concluded  in  a  collateral 
attack  by  the  judgment. 

13.  Confirmation — Scope   of   Inquiry — Right  to   Be    Heard. 

Section  19,  Laws  1899,  p.  41S,  empowers  the  district  court  upon  the  hearing  for 
confirmation,  to  determine  the  legality  and  regularity  of  all  the  proceedings 
taken  with  reference  to  the  organization  of  said  district  and  by  such 
district  up  to  the  time  the  judgment  of  confirmation  is  rendered,  including  all 
proceedings  affecting  the  legality  or  validity  of  the  bonds  issued  by  said  district,  and 
the  apportionment  of  costs  and  the  lists  of  such  apportionment ;  and  every  person 
interested  in  said  district  is  given  an  opportunity  to  appear  and  contest  the  same. 

14.  Confirmation    Proceedings — Scope  of   Inquiry — Statutory   Provision. 
Section  2  of  the  Act  of  March   18,   1901    (Laws   of   1901,  p.    194),   amending  the 

Laws  of  1899    (Laws  1899,  p.  414,  §   11),  expressly  provides  that  "The  proceedings 


Irrigation    Districts,    Formation    and 

Management   of. 
I.     In   General. 

A.     Legislative   Power. 
1.     General    Principles. 

The  power  of  congress  to  pass  an  act 
is  limited  to  authority  specially  con- 
ferred by  the  Federal  Constitution.  See 
Bozant  v.  Campbell,  9  Rob.  (La.)  411 
(1845).  But  the  power  of  the  state  leg- 
islature to  enact  laws  is  limited  or 
restricted  by  express  inhibitions  of  the 
Constitution  only. 

United  States. — Talcott  v.  Pine  Grove 
Township,  1  Flip  120,  161,  Fed.  Cas.  No. 
13735    (1872). 

California. — People  v.  Seymour,  16 
Cal.  332,  76  Am.  Dec.  521   (1860). 

Connecticut. — Lowry  v.  Gredley,  30 
Conn.  450    (1862). 

Georgia. — Boston  v.  Cummins,  16  Ga. 
102,  60  Am.  Dec.  717    (1854). 

Indiana. — Doe  ex  dem.  Chandler  v. 
Douglas,  5  Blackford  (Ind.)  10,  44  Am. 
Dec.  732  (1846)  ;  Beebe  v.  State,  6  Ind. 
501,  525,  540  ( 1855)  ;  Madison,  etc.  R.  Co. 
v.  Whiteneck,  8  Ind.  222  (1856);  La- 
fayette &  B.  R.  Co.  v.  Geiger,  34  Ind. 
185    (1870). 

Louisiana. — Bozant  v.  Campbell,  9 
Rob.  411  (1845)  ;  State  v.  Gutierrez,  15 
La.  Ann.   190    (1860).  ' 


New  York. — Bloodgood  v.  Mohawk  & 
H.  R.  Co.,  18  Wend.  (N.  Y.)  9,  31  Am. 
Dec.   313    (1837). 

North  Carolina. — State  v.  Moore,  104 
N.  C.  714,  10  S.  E.  143,  17  Am.  St.  Rep. 
696   (1889). 

Vermont. — Thorpe  v.  Rutland  R.  Co  , 
27  Vt.  140,  62  Am.  Dec.  625  (1854). 
Compare  Cincinnati  W.  &  Z.  R.  Co.  v. 
Clinton  County  Com'rs,  1  Ohio  St.  77 
(1852). 

Within  this  general  power  of  the  leg- 
islature is  the  right  and  power  of  pro- 
viding for  irrigation  of  certain  kinds 
of  land.  See  Fallbrook  Irr.  Dist.  v. 
Bradley  (dictum  of  Bradley,  J.),  164 
U.  S.  112,  166,  41  L.  Ed.  369,  391,  17 
Sup.  Ct.  56  (1896).  Gutierres  v.  Albu- 
querque L.  &  Irr.  Co.,  188  U.  S.  545, 
47  L.  Ed.  588,  23  Sup.  Ct.  338  (1903). 
Board  of  Supervisors  of  Riverside 
County  v.  Thompson,  122  Fed.  860 
(1903).  In  re  Madera  Irr.  Dist,  92  Cal. 
296,  28  Pac.  272,  675,  27  Am.  St.  Rep. 
106,  14  L.  R.  A.  755   (1891). 

The  manner  in  which  an  irrigation 
district  may  be  created,  and  the  duties 
of  the  officers  thereof,  are  matters  which 
are  determined  by  statute  in  that  re- 
gard. See  post  V,  A  and  B,  2,  and  VIII, 
A,  this  note. 


6 


Water  and  Mineral  Cases. 


[Idaho 


of  said  board  of  directors  in  making  such  apportionment  of  cost,  and  the  said  list 
of  such  apportionment,  shall  be  included,  with  other  features  of  the  organization  ot 
such  district  which  are  subject  to  judicial  examination  and  confirmation,  as  provided 
in  sections  sixteen,  seventeen,  eighteen,  nineteen  and  twenty  of  this  act. 

15.  Assessing    Benefits— Failure  to   List  According  to   Ownership— Listing   by 

Legal  Subdivision. 
The   fact  that   the   board  of   directors   in   assessing   benefits   to   lands   within   an 
irrigation  district,  fail  to  list  the  lands  according  to  each  separate  ownership,  but 
do  list  the  same  according  to  each  legal  subdivision,  does  not  show  that  the  board 
did  not  intend  to  assess  benefits  to  all  of  the  lands  within  the  legal  subdivision. 

16.  Less   than    Legal    Division    Benefited — Procedure   of    Board. 

The  statute  requires  the  board  to  assess  benefits  against  each  legal  subdivision 
or  tract  within  the  district,  and  where  less  than  a  legal  subdivision  is  benefited  in 
a  different  degree  or  amount  than  the  remainder  of  the  legal  subdivision  or  tract, 
then  the  board  is  required  to  fix  and  determine  the  benefits  accruing  to  such  particular 
tract;  but  where  the  entire  legal  subdivision  or  tract  is  benefited  equally,  then  the 
board  may  lay  the  assessment  against  the  legal  subdivision,  and  thus  include  the 
smaller  or  fractional  parts  thereof. 


2.     Changes  of    Law — Retroactive 

Effect. 
The  statutes  relating  to  the  creation, 
organization  and  management  of  irriga- 
tion districts  are  subject  to  legislative 
change  from  time  to  time,  and  these 
changes  retroact  on  existing  districts. 
Thus,  it  has  been  held  that  the  Califor- 
nia Act  of  March  31,  1897  (St.  1897, 
p.  254),  providing  for  the  organization 
and  government  of  irrigation  districts, 
applies  to  existing  districts  organized 
under  prior  laws.  Board  of  Supervisors 
of  Riverside  County  v.  Thompson,  122 
Fed.  860   (1903). 

3.       Limitation    of    Power    of    Legis- 
lature. 
The    legislative    power    to    change  or 
modify  irrigation  district  laws,  however, 
is  limited    in    that    the    legislature    can 
regulate  the  management  only;  it  cannot 
go  to  the  extent  of  affecting  any  vested 
interests  or  rights,  because  the  organiza- 
tion of  an  irrigation  district  is  regarded 
as  a  contract  between  the  state  and  the 
individuals    whose    property    is   affected 
thereby,  and  as  such  is  protected  by  sec- 
tion  10  of  article  I  of  the  Federal  Con- 
stitution,    preventing     t  be     state    from 
[ng  laws  impairing  the  obligation  of 
racts.      Merchants'    Nat.     Bank     v. 
Escondido   Irr.   Dist.,   144   Cal.   329,   77 
Pac.   9.37    (1994). 

B.     Legislative    Discretion. 
It  is  within  the  discretion  of  the  leg- 


islature to  determine  the  mode  or  man- 
ner in  which  an  irrigation  district 
shall  be  formed  and  managed,  and  it 
may  authorize  the  inhabitants  of  a 
region  or  settlement,  under  restrictions 
and  methods  of  procedure  provided,  to 
organize  themselves  into  a  public  munic- 
ipal corporation  for  governmental  pur- 
poses; and  such  public  municipal  cor- 
poration need  not  be  required  to  be 
formed  in  the  manner,  or  provided  with 
the  powers  of  municipal  corporations  of 
this  class.  In  re  Madera  Irr.  Dist.,  92 
Cal.  296,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755   (1891). 

The  legislature  having  exercised  its 
discretion  in  this  regard,  it  is  not  for 
the  courts  to  question  the  policy  or 
prudence  of  the  law  as  it  has  been  en- 
acted, and  it  is  no  valid  objection  to  the 
organization  of  the  district  that  persons 
not  interested  in  the  land  affected  may 
compel  the  organization,  or  that  the 
statute  does  not  provide  for  a  hearing 
from  the  owners  of  the  land  affected 
prior  to  the  organization  of  the  district. 
In  re  Madera  Irr.  Dist.,  92  Cal.  296,  28 
Pac.  272,  675,  27  Am.  St.  Rep.  106,  14 
L.  R.  A.  755    (1891). 

C.     Constitutionality. 
1.     General  Principles. 

Acts  providing  for  the  organization 
and  management  of  irrigation  districts, 
which  are  general  in  their  nature,  ap- 
plying  equally  to   all   persons   embraced 


1909]  Oregon  Shobt  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.      7 


17.  Assessment — Neglect  to  Levy  against  Right  of  Way  and  Station  Grounds 

—Effect  of. 
The  fact  that  the  officials  of  an  irrigation  district  neglect  to  assess  the  right 
of  way  and  station  grounds  of  a  railroad  company  for  certain  years  is  not  a  reason 
why  such  right  of  way  and  station  grounds  are  not  subject  to  assessment  by  said 
district;  and  the  company  cannot  defeat  a  future  assessment  by  reason  of  the  fact 
that  its  property  was  not  assessed  for  any  particular  year  or  years  prior  to  the 
assessment  made. 

18.  Assessing    Benefits — Want  of    Notice    of    Proceeding — Due    Process    of 

Law. 

The  fact  that  the  statute  makes  no  provision  for  notice  to  the  landowner  that 
on  a  particular  day  the  board  of  directors  will  assess  benefits  to  the  lands  within 
the  district  will  not  render  such  statute  unconstitutional,  where  the  statute 
does  provide  for  notice  to  be  given  of  the  proceedings  to  organize  such  district 
and  notice  of  the  hearing  for  the  confirmation  of  the  organization  and  proceedings 
of  such  district,  at  which  hearing  the  court  is  required  to  examine  all  the  proceedings 
involved  in  the  organization  of  such  district  including  the  assessment  of  benefits. 


within  a  class  and  founded  upon  a 
proper  distinction  (Escondido  High 
School  Dist.  v.  Escondido  Seminary,  130 
Cal.  128,  62  Pac.  401—1900)  are  con- 
stitutional in  principle  and  are  held 
valid  where  they  keep  within  the  scope 
of  their  object,  and  are  not  violative  of 
any  restrictions  of  the  state  or  Federal 
Constitutions  or  of  any  fundamental 
rights  guaranteed  thereby. 

United  States. — Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369, 
17  Sup.  Ct.  56  (1896)  ;  Tulare  Irr.  Dist. 
v.  Shepard,  185  U.  S.  1,  13,  46  L.  Ed. 
773,  22  Sup.  Ct.  531  (1902)  ;  Herring  v. 
Modesto  Irr.  Dist.,  95  Fed.  705    (1899). 

Arizona. — Oury  v.  Goodwin,  3  Ariz. 
255,  26  Pac.  376   (1891). 

California. — Lamb  v.  Reclamation 
Dist.,  73  Cal.  125,  14  Pac.  625,  2  Am.  St. 
Pep.  775  (1887);  Turlock  Irr.  Dist.  v. 
Williams,  76  Cal.  360,  18  Pac.  379 
(1888);  Central  Irr.  Dist.  v.  De  Lappe, 
79  Cal.  351,  21  Pac.  825  (1889);  Crall 
v.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797  (1890)  ;  In  re  Madera  Irr.  Dist.,  92 
Cal.  296,  27  Am.  St.  Rep.  106,  28  Pac. 
272,  675,  14  L.  R.  A.  755  (1891)  ;  In  re 
Central  Irr.  Dist.,  117  Cal.  382,  49  Pac. 
354  (1897);  People  v.  Linda  Vista  Irr. 
Dist.,  128  Cal.  477,  61  Pac.  86  (1900— 
Confirmatory  Act  of  1889)  ;  San  Joaquin 
&  Kings  River  Canal  &  Irr.  Co.  v.  Stan- 
islaus County,  155  Cal.  21,  99  Pac.  365 
(1908— Act  March  12,  1885,  Stats. 
p.  85). 


Colorado. — Anderson  v.  Grand  Valley 
Irr.  Dist.,  35  Colo.  525,  85  Pac.  313 
(1906— Laws  1901,  p.  198). 

Idaho. — Pioneer  Irr.  Dist.  v.  Bradley, 
8  Idaho  310,  68  Pac.  295,  101  Am.  St. 
Rep.  201  (1902)  ;  Nampa  &  M.  Irr.  Dist. 
v.  Brose,  11  Idaho  474,  83  Pac.  499 
(1905— Laws  1903,  p.  15);  Settlers  Irr. 
Dist.  v.  Settlers  Canal  Co.,  14  Idaho,  504, 
94  Pac.  829   (1908). 

Illinois. — See  Elmore  v.  Drainage 
Commrs.,  135  111.  269,  25  N.  E.  1010,  25 
Am.   St.  Rep.  363    (1890). 

Iowa. — See  Beebe  v.  Magoun,  122  Iowa 
94,  97  N.  W.  986,  101  Am.  St.  Rep.  259 
(1904). 

Missouri. — See  Mound  City  L.  &  8. 
Co.  v.  Miller,  170  Mo.  240,  70  S.  W. 
721,  94  Am.  St.  Rep.  727,  60  L.  R.  A. 
190    (1902). 

Nebraska. — Paxton  &  Hurshey  Irr.  C. 
&  L.  Co.  v.  Farmers  &  M.  L.  &  Irr. 
Co.,  45  Neb.  884,  64  N.  W.  343,  50  Am. 
St.  Rep.  585,  29  L.  R.  A.  853  (1895); 
Board  of  Directors  of  Alfalfa  Irr.  Dist. 
v.  Collins,  46  Neb.  411,  64  N.  W.  1086 
(Act  March  26,  1895). 

New  York — See  Matter  of  Tuthill, 
163  N.  Y.  133,  79  Am.  St.  Rep.  574,  57 
N.  E.  303,  49  L.  R.  A.  781    (1900). 

Oregon. — Umatilla  Irr.  Co.  v.  Barn- 
hart,  22  Or.  3S9,  30  Pac.  37  (1892); 
Little  Walla  Walla  Irr.  Dist.  v.  Preston, 
46  Or.  5,  78  Pac.  982   (1904). 

Washington. — Lewis  County  v.  Gordon, 
20  Wash.  80,  54  Pac.  779    (1898)  ;   Kin- 


s 


"Water  and  Mineral  Cases. 


[Idaho 


19.  Assessment — For   Maintenance  and    Bonded    Indebtedness — Validity. 

If  the  records  show  that  the  hoard  of  directors,  in  levying  an  assessment  for 
maintenance  and  to  pay  the  bonded  indebtedness  of  an  irrigation  district,  sub- 
stantially complied  with  the  statute,  and  the  assessment  roll  is  made  up  in 
substantial  compliance  with  the  statute,  the  assessment  thus  levied  will  be  upheld 
if  the  description  of  the  property  is  sufficient  to  give  the  landowner  notice  that 
such  property  is  burdened  with  such  assessment. 

20.  Of    Railroad    Property — Jurisdiction    of     State    Board    of     Equal- 
ization. 

The  power  and  jurisdiction  of  the  state  board  of  equalization  with  reference  to 
the  assessment  of  railroad  property  has  reference  to  assessments  made  for  general 
state,  county,  and  municipal  purposes,  and  not  to  assessments  made  for  local 
improvements. 

21.     Territory    Not    Within    District — Jurisdiction. 

Where  territory  has  not  been  included  within  the  boundaries  of  an  irrigation 
district  in  accordance  with  the  laws  governing  the  taking  of  territory  into  an 
irrigation  district,  the  district  has  no  power  or  jurisdiction  to  assess  the  property 
so  included. 

22.  Change  of  Boundaries — Want  of  Notice — Effect  of. 

Where  it  appears  that  an  irrigation  district  has  attempted  to  change  the  bound- 
aries of  such  district  so  as  to  include  other  territory,  but  has  failed  to  give  the  notice 


cade  v.  Witherop,  29  Wash.  10,  69  Pac. 
399  (1902).  See  Board  of  Directors  Mid- 
dle Kittitas  Irr.  Dist.  v.  Peterson,  4 
Wash.  147,  29  Pac.  995   (1892). 

Thus,  an  act  of  this  nature  providing 
for  the  assessment  of  land  in  an  irriga- 
tion district  according  to  the  value  of 
the  land,  and  not  according  to  the 
benefit  to  be  received  by  each  parcel, 
to  pay  for  the  public  improvement,  is 
constitutional,  except  in  case  of  an  ex- 
press constitutional  prohibition,  for  the 
reason  that  such  assessments  are  in- 
cluded in  the  inherent  power  of  taxa^ 
tion,  which  is  not  limited  to  benefits 
received.  In  re  Madera  Irr.  Dist.,  92 
Cal.  296,  307,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106,  14  L.  R.  A.  755  (1891); 
Schall  v.  Norristown,  6  Leg.  Gaz.  (Pa.) 
157  ( 1874) .  See  post  VII,  A  and  E,  this 
note. 

2.     California   Statutes. 

Irrigation  district  legislation,  under 
which  a  municipal  public  corporation 
may  be  created  for  the  purpose  of  fur- 
nishing water  for  the  irrigation  of  the 
land  within  the  district,  has  been  sus- 
tained upon  the  same  ground  as  has  the 
levee  and  reclamation  district  legisla- 
tion, which  is,  in  effect,  that  the  land 
included  within  the  limits  of  such  dis- 


trict requires,  by  reason  of  its  situation 
and  condition,  the  protection  or  recla- 
mation thus  made  possible,  and  that  it 
is  for  the  public  welfare  that  such  pro- 
tection or  reclamation  should  be 
afforded  such  land.  Jenison  v.  Redfield, 
149  Cal.  500,  87  Pac.  62  (1906).  See 
In  re  Madera  Irr.  Dist.,  92  Cal.  296, 
311-318,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755   (1891). 

The  California  Act  of  March  7,  1887 
(Sess.  Laws  1887,  p.  29),  known  as  the 
Wright  Act,  providing  for  the  organiza- 
tion and  government  of  irrigation  dis- 
tricts and  the  provisions  thereof  relative 
to  the  condemnation  of  private  property, 
land,  water,  etc.,  for  the  uses,  are  con- 
stitutional. 

United  States. — Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369,  17 
Sup.  Ct.  56  (1896)  ;  Herring  v.  Modesto 
Irr.  Dist.,  95  Fed.  705,  715,  716  (1899); 
People  ex  rel.  Brady  v.  Brown's  Valley 
Irr.  Dist.,  119  Fed.  535,  538    (1902). 

California. — Turlock  Irr.  Dist.  v.  Wil- 
liams, 76  Cal.  360,  18  Pac.  379  (1888); 
Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  353,  21  Pac.  825  (1889);  Crall 
v.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797  (1890);  Modesto  Irr.  Dist.  v.  Tre- 
gea,  88  Cal.  334,  352,  26  Pac.  237 
(1891)  ;  In  re  Madera  Irr.  Dist.,  92  Cal. 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.       9 


required  by  the  statute  of  the  intention  of  such  district  to  change  such  boundaries, 
and  the  owners  of  land  attempted  to  be  taken  into  such  district  have  no  notice 
of  the  change  in  boundaries  and  the  inclusion  of  such  land  within  the  district, 
such  owners  are  not  prevented  from  challenging  the  legality  of  the  change  in 
the  boundaries  of  such  district  until  they  have  had  their  day  in  court.  (Sullivan, 
C.  J.,  dissenting  in  part.) 

Appeal  from  the  District  Court  of  Canyon  County. 

Action  by  the  Oregon  Short  Line  Railroad  Company  against  the 
Pioneer  Irrigation  District,  its  treasurer  and  ex  officio  tax  collector 
of  the  irrigation  district,  to  restrain  collection  of  assessment.  Appeal 
from  judgment  in  favor  of  the  defendants. 

Attorneys  for  appellant — Rice,  Thompson  &  Buckner. 
Attorneys  for  respondent — P.  L.  Williams,  D.  Worth  Clark,  and  W. 
A.  Stone. 

Sullivan,  C.  J.,  dissenting  in  part. 


296,  307,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755  (1891)  ;  Wood- 
ward v.  Fruitvale  Sanitary  Dist.,  99 
Cal.  554,  562,  34  Pac.  239  (1893);  Cul- 
len  v.  Glendora  Water  Co.,  113  Cal.  503, 
45  Pac.  822,  1047  (1896).  See  39  Pac. 
769  (1895);  In  re  Central  Irr.  Dist,, 
117  Cal.  382,  389,  49  Pac.  354  (1897)  ; 
Escondido  High  School  Dist.  v.  Escondido 
Seminary,  130  Cal.  128,  62  Pac.  401 
(1900). 

Nebraska. — See  Board  of  Directors 
Alfalfa  Irr.  Dist.  v.  Collins,  46  Neb.  411, 
417,  423,  64  N.  W.  1086  (1895)  ;  State 
ex  rel.  Patterson  v.  Board  of  Commis- 
sioners, 47  Neb.  450,  66  N.  W.  434 
(1896). 

Tennessee. — See  Reelfoot  Lake  Levy 
Dist.  v.  Dawson,  97  Tenn.  179,  36  S.  W. 
1041   (1896). 

Confirmation  Act  of  March  16,  1889, 
held  to  be  a  separate  and  independent 
statute  amendatory  of  the  Wright  Act, 
but  no  part  thereof,  provided  special 
proceedings  in  which  the  aid  of  the 
court  may  be  invoked  to  secure  evidence 
and  determine  as  to  the  due  and  regular 
organization  of  any  irrigation  district 
and  the  regularity  of  any  bond  issue  by 
it  and  that  the  limitation  of  two  years, 
provided  in  section  3  of  the  Wright  Act 
of  1891,  in  which  a  suit  shall  be  com- 
menced   or   defense   made   attacking   the 


validity  of  the  organization,  does  not 
apply  to  special  proceedings  instituted  by 
the  board  under  the  Act  of  1889.  In  re 
Central  Irr.  Dist.,  117  Cal.  382,  49  Pac. 
354   (1897). 

3.     Colorado   Statute. 

The  Colorado  Irrigation  District  Law 
of  1901,  p.  198,  is  not  violative  of  the 
provision  of  the  statute  requiring  all  acts 
of  the  legislature  to  contain  but  one 
subject,  which  shall  be  clearly  expressed 
in  the  title;  or  of  the  clause  guaranty- 
ing due  process  of  law;  or  of  the  pro- 
vision that  waters  of  streams  shall  be 
the  property  of  the  public,  subject  to 
appropriation,  Anderson  v.  Grand  Val- 
ley Irr.  Dist.,  35  Colo.  525,  85  Pac.  313 
(1906). 

4.   Idaho  Statute. 

The  Idaho  Irrigation  District  Law 
(Laws  1903,  p.  150),  providing  for  the 
creation  and  management  of  such  dis- 
tricts is  not  violative  of  section  16  of 
article  III  of  the  State  Constitution  re- 
quiring all  laws  to  embrace  but  one 
subject,  which  shall  be  clearly  stated  in 
its  title,  and  does  not  in  any  other  par- 
ticular violate  the  State  Constitution. 
Nampa  &  M.  Irr.  Dist.  v.  Brose,  11 
Idaho  474,  83  Pac.  499  (1905). 
5.     Nebraska  Statute. 

The  Nebraska  Statute  (Act  March  26, 
1895)    providing  for   irrigation   districts 


10 


Water  and  Mineral  Cases. 


[Idaho 


STEWART,  J.     The  Pioneer  Irrigation  District  is  an  irrigation  dis- 
trict organized  on  the day  of  July,  1901.     The  Oregon  Short  Line 

Railroad  Company,  a  corporation,  owns  right  of  way  and  depot  grounds 
within  the  boundary  lines  of  said  district.  In  the  year  1905  the  right 
of  way  and  station  grounds  of  the  railroad  company  were  assessed  for 
the  purpose  of  maintaining  said  irrigation  district.  The  company  prose- 
cutes this  suit  to  obtain  a  restraining  order  restraining  said  district  and 
its  treasurer  from  collecting  taxes  upon  the  right  of  way  and  station 
grounds  of  said  company.  The  cause  was  tried  to  the  court  and  a  decree 
entered  in  favor  of  the  railway  company  and  in  which  the  court  ad- 
judged: "That  the  defendant  the  Pioneer  Irrigation  District  or  its 
officers  have  no  jurisdiction  or  authority  to  assess  or  levy  any  taxes 
upon  any  part  of  the  property  described  in  plaintiff's  complaint,  or  the 
property  herein  described  for  the  purpose  of  maintaining  the  said  Pioneer 

the  provisions  of  the  State  Constitution 
(art.  I,  §  13)  and  of  the  Federal  Con- 
stitution   (§   1,  14th  Amendment)    and  a 


is  copied  in  all  essential  respects  from 
the  California  Wright  Act,  and  is  con- 
stitutional. Board  of  Directors  of 
Alfalfa  Irr.  Dist.  v.  Collins,  46  Neb.  411, 
64  N.  W.  186  (1895).  It  is  not  uncon- 
stitutional either  on  the  ground  that  the 
effect  thereof  is  to  confer  legislative 
powers  upon  county  boards  or  that  the 
power  thereby  conferred  upon  the  dis- 
tricts to  levy  taxes  is  without  limita- 
tion. Board  of  Directors  Alfalfa  Irr. 
Dist.  v.  Collins,  46  Neb.  411,  64  N.  W. 
186     (1895). 

6.  Washington  Statute. 
The  Washington  Irrigation  Law  (Acts 
1890,  1  Ballinger'8  Ann.  Codes  and 
Stats.,  §  410G)  is  almost  identical  with 
the  California  Statute  known  as  the 
Wright  Act,  and  is  constitutional. 
Rothchild  Bros.  v.  Rollinger,  32  Wash. 
307,  73  Pac.  367    (1903). 

D.  Unconstitutional  Acts. 
An  irrigation  district  law  providing 
for  the  organization  of  such  a  district 
by  a  majority  vote  of  the  landowners 
within  the  district,  and  providing  that 
the  bonds  and  interest  thereof  issued  by 
the  district  shall  be  paid  by  annual  as- 
sessments on  the  property  within  the 
district,  and  on  which  land  such  bonds 
and  interest  are  a  lien,  upon  the  organ- 
ization of  a  district  under  the  provisions 
of  such    law,  becomes  a  contract  within 


subsequent  act  of  the  legislature  (Cal. 
Stats.  1893,  p.  175)  amendatory  of  the 
original  act,  authorizing  the  board  of 
directors  of  the  irrigation  district,  with- 
out the  consent  of  the  landowners  within 
the  district,  to  pledge  the  property  of 
the  district  as  security  for  bonds  issued, 
is  unconstitutional  in  that  it  impairs  the 
obligation  of  a  contract  created  by  the 
organization  of  the  district.  Merchants' 
Nat.  Bank  v.  Escondido  Irr.  Dist.,  144 
Cal.  329,  77  Pac.  937   (1904). 

The  legislature  has  no  power  to  dis- 
pose absolutely  of  the  property  within 
an  irrigation  district,  depriving  the 
beneficiary  owners  thereof  without  due 
process  of  law,  and  for  this  reason  an 
act  of  the  legislature  authorizing  a  con- 
veyance of  the  statutory  power  to 
manage  and  control  the  water  system 
and  other  properties  of  an  irrigation 
district  is  in  violation  of  the  provision 
of  the  State  Constitution  (§  13,  art.  XI) 
prohibiting  the  delegation  of  powers 
(Merchants  Nat.  Bank  v.  Escondido  Irr. 
Dist.,  144  Cal.  329,  77  Pac.  937—1904)  ; 
and  it  was  on  this  ground  that  the  pro- 
visions of  the  Wright  Act  authorizing 
the  board  of  directors  of  an  irrigation 
district  to  pledge  by  mortgage,  deed  of 
trust,  or  otherwise,  all  the   property  of 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     11 


Irrigation  District."  Then  follows  a  description  of  the  property.  A 
motion  for  a  new  trial  was  made  and  overruled,  and  this  appeal  is  from 
the  judgment  and  from  the  order  overruling  the  motion  for  a  new  trial. 
The  questions  for  determination  and  which  are  presented  by  the  rec- 
ord are:  First,  is  the  plaintiff's  right  of  way  and  station  grounds  such 
property  as  can  be  assessed  for  and  subjected  to  the  payment  of  a  tax 
for  the  purpose  of  maintaining  said  district  ?  Second,  if  such  property  is 
assessable,  did  the  officers  of  the  irrigation  district,  at  the  time  of  the 
organization  thereof,  comply  with  the  law  so  as  to  be  able  thereafter 
to  assess  the  property  belonging  to  the  railway  company  situated  within 
said  district?  Third,  if  such  property  be  assessable,  and  if  the  officers 
at  the  time  of  the  organization  of  the  district  complied  with  the  law, 
did  they  thereafter  pursue  the  course  pointed  out  by  statute  for  the 
collection  of  such  tax? 

sessment  conclusive  evidence  of  the  regu- 
larity of  proceedings  from  the  time  of 
the  levying  of  the  assessment  until  the 
execution  and  delivery  of  the  deed,  are 
independent  of  the  clause  in  the  same 
act  making  such  deed  prima  facie  evi- 
dence as  to  the  things  which  are  therein 
enumerated;  the  former  sections  refer 
to  proceedings  other  than  those  to  which 
the  deed  is  made  merely  prima  facie 
evidence.  Escondido  High  School  Dist. 
v.  Escondido  Seminary,  130  Cal.  128, 
62    Pac.    401     (1900). 

The  provision  of  the  Wright  Act 
(§  37)  requiring  notice  to  he  given  to 
taxpayers  of  the  meeting  of  the  board 
of  equalization  is  valid  notwithstanding 
the  fact  that  it  does  not  provide  that  a 
notice  shall  be  given  of  the  final  act  of 
the  board,  which  is  the  levying  of  the 
assessment,  for  the  reason  that  this  final 
act  is  a  matter  of  record  regarding  which 
parties  interested  can  ascertain  the 
facts  from  the  record.  Lahman  v.  Hatch, 
124  Cal.  1,  56  Pac.  621  (1899).  Under 
the  original  provisions  of  the  Wright 
Act  (§38)  the  salaries  of  officers  pro- 
vided for  therein  were  not  an  invalid 
indebtedness  of  the  irrigation  district, 
although  in  excess  of  the  amount  pro- 
vided for  in  that  act,  and  are  not  af- 
fected by  amendments  to  that  act,  ex- 
cept indebtedness  not  exceeding  two 
thousand  dollars   (Mitchell  v.  Patterson, 


a  district  as  additional  security  for  the 
payment  of  its  bonds,  was  held  uncon- 
stitutional. Merchants'  Nat.  Bank  v. 
Escondido  Irr.  Dist.,  144  Cal.  329,  77 
Pac.  937    (1904). 

E.      Construction    of   Statutes. 
1.     General    Rule. 

In  California  it  is  held  that  the  pro- 
visions of  a  statute  regulating  the 
proceedings  for  the  formation  of  an  ir- 
rigation district  and  the  management 
thereof  after  its  formation  are  to  be 
liberally  construed  so  as  to  carry  out 
the  purpose  of  the  law  (Central  Irr. 
Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac. 
825 — 1889)  ;  but  in  Colorado  it  is  held 
that  in  as  much  as  these  statutes  im- 
pose special  burdens,  they  are  to  be 
strictly  construed  and  in  case  of 
doubt  are  to  be  construed  in  favor  of  a 
taxpayer.  Ahern  v.  Board  of  Directors 
of  High  Line  Irr.  Dist.,  39  Colo.  409, 
89  Pac.  963  (1907).  In  those  cases 
where  the  statutes  are  in  conflict,  the 
later  statute  controls  as  being  the  last 
expression  of  the  intention  of  the  legis- 
lature relative  to  the  subject.  Fravert 
v.  Mesa  County  Commissioners,  39  Colo. 
71,   88   Pac.   873    (1907). 

2.      California    Statute — Wright    Act. 

The  provisions  of  the  Wright  Act 
(§§  7,  30),  making  a  tax  deed  to  land 
sold  in  enforcement  of  an  irrigation  as- 


12 


Water  and  Mineral  Cases. 


[Idaho 


Counsel  for  respondent  contend  that  the  right  of  way  and  station 
grounds  of  the  railway  company  are  used  strictly  for  railroad  purposes 
and  that  water  for  the  purpose  of  irrigation  is  not  required  and  has 
never  been  used  upon  such  grounds ;  and  for  that  reason  the  district  had 
no  jurisdiction  to  assess  such  property.  This  argument  of  counsel  is 
founded  upon  the  claim  that  the  power  to  assess  as  conferred  by  the 
irrigation  law  is  based  upon  special  benefits  to  the  property  assessed; 
and,  inasmuch  as  the  right  of  way  and  station  grounds  of  the  company 
cannot  in  any  way  be  benefited  by  such  improvement  or  the  use  of  water, 
for  that  reason  the  district  had  no  jurisdiction  to  make  such  assessment. 

Section  2  of  the  act  of  March  6,  1899  (Laws  1899,  p.  408),  as 
amended  by  act  of  March  18,  1901  (Laws  1901,  p.  191,  §  1),  provides 
for  the  organization  of  an  irrigation  district  on  presentation  of  a  peti- 


120  Cal.  286,  52  Pac.  589—1898).  The 
question  whether  this  limitation  on  the 
amount  of  indebtedness  which  an  irri- 
gation district  may  incur  prohibits  the 
incurring  of  an  indebtedness  for  any 
purpose,  including  salaries  of  officers 
authorized  by  the  act  and  essential  for 
the  transaction  of  business,  was  raised, 
but  not  decided,  in  Mitchell  v.  Patterson, 
120  Cal.  286,  52  Pac.  589  (1898).  See 
Welch  v.  Strother,  74  Cal.  413,  16  Pac. 
22  (1887);  Lewis  v.  Widber,  99  Cal. 
412,  33  Pac.  1128  (1893)  ;  Hunt  v.  Brod- 
erick,  104  Cal.  313,  37  Pac.  1040  (1894)  ; 
Kauch  v.  Chapman,  16  Wash.  568,  579, 
48  Pac.  253,  58  Am.  St.  Rep.  52,  60 
(1897). 

3.  Idaho  Act. 
The  fact  that  the  Idaho  Statute 
(Laws  1899,  p.  408,  §  11,  as  amended 
by  Laws  1901,  p.  194)  makes  no  pro- 
rision  for  notice  to  the  landowner  that 
on  a  particular  day  the  board  of  di- 
rectors will  assess  benefits  to  the  lands 
within  the  district  will  not  render  such 
statute  unconstitutional  where  the  stat- 
ute does  provide  for  notice  to  be  given 
of  the  proceedings  to  organize  such  dis- 
trict and  notice  of  the  hearing  for  the 
confirmation  of  the  organization  and 
proceedings  of  such  district,  at  which 
hearing  the  court  is  required  to  exam- 
ine all  the  proceedings  involved  in  the 
organization   of   such   district,   including 


the  assessment  of  benefits.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho,  578,  102  Pac.  904   (1909). 

4.     Confirmation  Act. 

The  California  Confirmation  Act  of 
1889  (Stats.  1889,  p.  212)  has  been  held 
to  be  a  separate  and  independent  statute 
amendatory  of  the  Wright  Act,  but 
forming  no  part  thereof,  and  provides 
special  proceedings  in  which  the  aid  of 
the  court  may  be  invoked  by  an  irriga- 
tion district  to  secure  evidence  and  de- 
termine as  to  the  clue  and  regular  or- 
ganization of  the  district  and  the  reg- 
ularity and  validity  of  any  bond  issue 
by  it;  the  limitation  of  two  years  pro- 
vided in  section  3  of  the  Wright  Act, 
as  amended  in  1891,  for  the  commence- 
ment of  actions  and  defenses  made  at- 
tacking the  validity  of  the  organization, 
has  no  application  to  the  proceedings 
under  said  Confirmation  Act.  In  re 
Central  Irr.  Dist.,  117  Cal.  382,  49  Pac. 
354    (1897). 

F.     De  Facto   Districts. 

An  irrigation  district  is  a  quasi  pub- 
lic municipal  corporation  (see  post  I,  H, 
1,  this  note),  and  where  an  attempted 
organization  of  such  a  district  fails  to 
amount  to  a  de  jure  municipal  corpora- 
tion, it  may  act  as  a  corporation  de 
facto,  and  its  actions  as  such  will  be 
binding  on  everybody  except  the  state, 
and  any  bonds  issued  by  it  will  be  valid. 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     13 


tion.  The  petition  is  required  to  be  accompanied  with  a  map  of  the 
proposed  district;  this  map  is  required  to  show  the  location  of  the 
proposed  canal  or  other  works  by  means  of  which  it  is  intended  to 
irrigate  the  proposed  district.  The  statute  provides  that  a  hearing  shall 
be  had  after  notice,  by  the  board  of  county  commissioners,  at  which 
hearing  the  board  may  make  such  changes  in  the  proposed  boundaries 
as  they  may  find  proper  and  as  are  approved  by  the  state  engineer,  and 
shall  establish  and  define  such  boundaries  provided,  "That  said  board  shall 
not  modify  said  boundaries,  so  as  to  except  from  the  operations  of  this 
act  any  territory  within  the  boundaries  of  the  district  proposed  by  said 
petitioners,  which  is  susceptible  of  irrigation  by  the  same  system  of 
works  applicable  to  other  lands  in  such  proposed  district;  nor  shall  any 
lands  which  will  not  in  the  judgment  of  said  board  be  benefited  by  irriga- 


.  United  States. — Baltimore  &  P.  R. 
Co.  v.  Fifth  Baptist  Church,  137  U.  S. 
568,  571,  34  L.  Ed.  784,  11  Sup.  Ct.  185 
(1890)  ;  Shapleigh  v.  City  of  San  Angelo, 
167  U.  S.  646,  655,  42  L.  Ed.  310,  314, 
17  Sup.  Ct.  957  (1897)  ;  Tulare  Irr.  Dist. 
v.  Shepard,  185  U.  S.  1,  13,  46  L.  Ed. 
773,  22  Sup.  Ct.  531  (1902);  Miller  v. 
Perris  Irr.  Dist.,  85  Fed.  693  (1898), 
99  Fed.  143  (1900)  ;  Herring  v.  Modesto 
Irr.   Dist.,   95   Fed.   705    (1899). 

Alabama. — Snider's  Sons  Co.  v.  Troy, 
91  Ala.  224,  8  So.  658,  24  Am.  St.  Rep. 
887    (1890). 

California. — People  v.  Montecito 
Water  Co.,  97  Cal.  276,  32  Pac.  236 
(1893);  Quint  v.  Hoffman,  103  Cal.  506, 
37  Pac.  514    (1894). 

Michigan. — Swartwout  v.  Michigan  Air 
Line  Co.,  24  Mich.  389,  393   (1872). 

ATeio  Jersey. — Stout  v.  Zulick,  48  N. 
J.  L.   (19  Vr.)  599,  7  Atl.  362   (1886). 

New  York. — Lamming  v.  Galusha,  81 
Hun  (N.  Y.)  247,  30  N.  Y.  Supp.  767 
(1894),  affirmed  in  151  N.  Y.  648,  45 
N.  E.   1132    (1896). 

Texas. — American  Salt  Co.  v.  Heiden- 
heimer,  80  Tex.  344,  15  S.  W.  1038 
(1891).  The  legality  of  its  organiza- 
tion cannot  be  collaterally  attacked  by 
an  individual  or  pleaded  by  the  district 
itself  for  the  purpose  of  avoiding  obliga- 
tions which  it  has  incurred  while  acting 
as    such    district.      Herring    v.    Modesto 


Irr.  Dist,  95  Fed.  705   (1899).     See  post 
III,  J,  2  and  IV,  E,  this  note. 

G.    Public   Use. 

The  irrigation  of  arid  lands  is  a  pub- 
lic purpose,  and  water  put  to  such  pur- 
pose is  put  to  a  public  use. 

United  States. — In  re  Fallbrook  Irr. 
Dist.  v.  Bradley,  164  U.  S.  112,  41  L. 
Ed.  369,  17  Sup.  Ct.  56  (18G9)  ;  Clark  v. 
Nash,  198  U.  S.  361,  49  L.  Ed.  1085,  25 
Sup.  Ct.  676    (1905). 

Arizona. — Orey  v.  Goodwin,  3  Ariz. 
255,  26  Pac.  376   (1891). 

California. — Crescent  Canal  Co.  v. 
Montgomery,  143  Cal.  248,  76  Pac.  1032 
(1894);  San  Joaquin  &  Kings  River 
Canal  &  Irr.  Co.  v.  Stanislaus  Co.,  155 
Cal.  21,  99  Pac.  365  (1908). 

Colorado. — Yonker  v.  Nichols,   1   Colo. 
551     (1S72);      Schilling   v.    Rominger,    4 
Colo.     100      (1S78);     De    Graffenried    v. 
Savage,   9  Colo.   App.    131,  47   Pac.   902 
(1897). 

Montana. — Ellinghouse  v.  Taylor,  19 
Mont.  462,  48  Pac.  757    (1897). 

Nebraska. — Crawford  Co.  v.  Hathaway, 
67  Neb.  329,  93  N.  W.  781,  sub  nom. 
Crawford  Co.  v.  Hall,  60  L.  R.  A.  889 
(1903— Laws  1893  p.  244)  ;  McCook  Irr. 
&  W.  P.  Co.  v.  Crews,  70  Neb.  115,  102 
N.  W.  249  (1905). 

Utah.— Nash  v.  Clark,  27  Utah  158, 
75  Pac.  371,  101  Am.  St.  Rep.  953,  1 
L.   R.   A.    (N.   S.)    208    (1904),  affirmed 


14 


Water  and  Mineral  Cases. 


[Idaho 


tion  by  said  system  be  included  within  such  district."  It  will  thus  be 
seen  from  the  provisions  of  this  act  that  a  final  hearing  is  provided 
for  after  notice  to  all  parties  interested,  at  which  the  board  may  make 
such  changes  in  the  proposed  boundaries  as  they  may  find  proper,  but 
shall  not  except  any  territory  within  the  boundaries  which  is  susceptible 
of  irrigation  by  the  same  system  of  works  applicable  to  other  lands,  or 
include  within  the  boundaries  of  such  district  any  lands  which  will  not 
in  the  judgment  of  said  board  be  benefited  by  irrigation  by  said  system. 
At  the  final  hearing  thus  provided  for  the  board  of  commissioners 
were  necessarily  required  to  determine  whether  or  not  the  lands  to  be 
included  within  said  district  would  be  benefited  by  the  system  of  irriga- 
tion proposed,  and  were  precluded  by  the  statute  from  including  within 
the  district  any  lands  which  would  not  in  the  judgment  of  the  board 


198  U.  S.  361,  49  L.  Ed.  1085,  25  Sup. 
Ct.    676    (1905). 

Statutes  providing  that  water  appro- 
priated for  purposes  of  sale,  rental  or  dis- 
tribution should  be  public  use,  are  valid. 
San  Joaquin  &  Kings  River  Canal  & 
Trr.  Co.  v.  Stanislaus  Co.,  155  Cal.  21,  99 
Pac.  365  (1908— Stats.  1885,  p.  95); 
Crawford  Co.  v.  Hathaway,  67  Neb.  325, 
93  N.  W.  781,  sub  nom.  Crawford  Co.  v. 
Hall,  60  L.  R.  A.  889  (1903— Laws  1893, 
p.  244)  ;  McCook  Irr.  &  W.  P.  Co.  v. 
Crews,  70  Neb.  115,  102  N.  W.  249 
(1905).  See  San  Diego  Land  &  T.  Co.  v. 
National  City,  174  U.  S.  739,  43  L.  Ed. 
1154,  19  Sup.  Ct.  804   (1899). 

An  irrigation  district  or  an  irrigation 
company  is  an  agent  of  the  state  in  the 
administration  of  the  public  use  of  water 
(Crescent  Canal  Co.  v.  Montgomery,  143 
Cal.  248,  76  Pac.  1032,  65  L.  R.  A.  940— 
1904),  and  its  officers  are  public  officers 
or  agents.     See  post  I,  H,  3,  this  note. 

Appropriation  of  water  to  arid,  or 
semi-arid  lands  is  a  public  use  which 
carries  with  it  the  power  of  eminent 
domain.     See  post  I,  I,  this  note. 

H.     Public  Municipal  Corporations. 
1.     Generally. 

The  ultimate  purpose  of  the  Irrigation 
Act  is  the  improvement  by  irrigation  of 
landa  within  the  district.  A  district 
can,  under  the  law,  be  organized  and 
exist  and  acquire  land  for  that  purpose 


only.  Jenison  v.  Redfield,  149  Cal.  500, 
77   Pac.   62    (1906). 

In  an  early  Washington  case  it  was 
said  that  irrigation  districts  are  not 
municipal  corporations  (Middle  Kittitas 
Irr.  Dist.  v.  Peterson,  4  Wash.  147,  29 
Pac.  995 — 1892),  and  the  same  has  been 
held  regarding  ditch  corporation  formed 
under  the  Colorado  Statute.  Belnap  Sav. 
Bank  v.  La  Mar  L.  &  C.  Co.,  28  Colo.  326, 
339,  64  Pac.  212  (1901).  But  it  is  now 
generally  held  that  irrigation  districts, 
when  organized  under  and  in  pursuance 
of  the  statute  indicated  by  the  legislature 
for  the  purpose  of  promoting  the  public 
welfare  have  all  the  elements  of  corpora- 
tions formed  to  accomplish  a  public  use 
or  purpose,  and  are  quasi  public  muni- 
cipal corporations,  as  regards  their  func- 
tions, in  the  sense  that  the  purposes 
for  which  they  are  organized  are  for  the 
public   benefit. 

United  States. — Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369, 
17  Sup.  Ct.  56  (1896)  ;  Tulare  Irr.  Dist. 
v.  Shepard,  185  U.  S.  1,  13,  46  L.  Ed. 
773,  22  Sup.  Ct.  531  (1902)  ;  Stanislaus 
Co.  v.  San  Joaquin  &  Kings  River  Canal 
&  Irr.  Co.,  192  U.  S.  201,  202,  48  L. 
Ed.  406,  24  Sup.  Ct.  241  (1904)  ;  Herring 
v.  Modesto  Irr.  Dist.,  95  Fed.  Rep.  705 
(1899). 

California. — Turlock  Irr.  Dist.  v.  Wil- 
liams, 76  Cal.  360,  18  Pac.  379   (1888)  ; 


1909]  Oregon  Shokt  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     15 

be  benefited  by  irrigation  by  said  system.  The  board  of  county  commis- 
sioners was  thus  designated  as  the  tribunal  empowered  to  determine 
the  question  whether  the  lands  included  within  the  district  would  be 
benefited  by  the  system  proposed;  and  an  opportunity  was  thus  pre- 
sented to  the  railway  company  to  appear  at  such  hearing  and  contest 
the  question  of  benefits  to  the  lands  owned  by  the  company  within  the 
district.  The  railway  company  did  not  appear  at  this  hearing  or  make 
any  objection  to  including  within  the  district  its  right  of  way  and  station 
grounds;  and  not  having  appeared  at  the  hearing  provided  by  the  stat- 
ute for  determining  the  question  of  benefits,  the  company  is  concluded 
by  the  judgment  thus  entered,  in  a  collateral  attack,  and  could  only 
review  such  judgment  in  the  method  pointed  out  by  the  statute.  Knowles 
v.  New  Sweden  Irr.  Dist.,  16  Idaho  217,  101  Pac.  81 ;  Board  of  Directors 


Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825  (18S9);  Crall  v.  Poso 
Irr.  Dist.,  87  Cal.  140,  26  Pac.  797 
(1890)  ;  In  re  Madera  Irr.  Dist.,  92  Cal. 
296,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755(1891); 
People  v.  Trunbull,  93  Cal.  630, 
29  Pac.  224  (1892)  ;  People  v.  Selma  Irr. 
Dist.,  98  Cal.  206,  32  Pac.  1047  (1893)  ; 
Quint  v.  Hoffman,  103  Cal.  506,  37  Pac. 
514  (1894);  Borhmer  v.  Big  Rock  Irr. 
Dist.,  117  Cal.  19,  48  Pac.  908  (1897); 
Merchants'  Nat.  Bank  v.  Escondido  Irr. 
Dist.,  144  Cal.  329,  77  Pac.  937  (1904). 
See,  also,  Hagar  v.  Supervisors  of  Yolo 
County,  47  Cal.  222  (1874);  Dean  v. 
Davis,  51  Cal.  406  (1876);  People  v. 
Williams,  56  Cal.  647  (1880);  People 
v.  La  Rue,  67  Cal.  526,  8  Pac.  84  (1885)  ; 
Reclamation  Dist.  v.  Hagar,  66  Cal.  54, 
4  Pac.  945   (1884). 

Nebraska. — Board  of  Directors  of  Al- 
falfa Irr.  Dist.  v.  Collins,  46  Neb.  411, 
64  N.  W.  10S6  (1895 — Is  a  public  rather 
than  a  municipal  corporation)  ;  Lincoln 
&  Dawson  County  Irr.  Dist.  v.  McNeal, 
60  Neb.  621,  83  N.  W.  847  (1900). 

New  Mexico. — Candelaria  v.  Vallejos, 
13  N.  M.  146,  81  Pac.  589  (1905— In- 
voluntary  quasi   public   corporations). 

The  whole  object  of  the  legislation  au- 
thorizing the  organization  of  irrigation 
districts  is  to  enable  the  owners  of  land 
susceptible    of    irrigation    from    a    com- 


mon source  and  by  the  same  system  of 
works,  to  form  a  district  composed  of 
such  lands,  which  district  when  formed 
is  a  public  corporation  for  the  sole  pur- 
pose of  obtaining  and  distributing  such 
water  as  may  be  necessary  for  the  irri- 
gation of  the  lands  within  the  district, 
thus  giving  each  owner  for  his  lands 
within  the  district  the  benefit  of  the 
common  system  of  irrigation,  and  bring- 
ing about  the  reclamation  of  the  land  of 
the  district  from  aridity  to  a  condition 
suitable  for  cultivation.  Jenison  v.  Red- 
field,  149  Cal.  500,  87  Pac.  62   (1906). 

While  an  irrigation  district  is  a  pub- 
lie  municipal  corporation  as  regards  the 
function  to  be  performed,  it  is  not  a 
municipal  corporation  to  the  extent  that 
the  state  can  dispose  of  its  property  as  it 
pleases;  but  it  is  to  be  classed  as  a  pri- 
vate corporation  as  regards  the  private 
right  of  the  individual  landowners  with- 
in the  district.  Merchants'  Nat.  Bank  v. 
Escondido  Irr.  Dist.,  144  Cal.  329,  77 
Pac.  937  (1904).  The  legal  title  to  all 
of  the  lands  of  the  district  is  held  in 
trust  by  the  district  and  is  dedicated  and 
set  apart  to  the  uses  and  purposes  speci- 
fied in  the  act.  The  beneficial  title  is  in 
the  owners  of  the  land  within  the  irriga- 
tion district.  Tulare  Irr.  Dist.  v.  Collins, 
154  Cal.  440,  442,  97  Pac.  1124  (1908). 
See  Merchants'  Nat.  Bk.  v.  Escondido  Irr. 
Dist.,  144  Cal.  329,  77  Pac.  937   (1904). 


16 


Water  and  Mineral  Cases. 


[Idaho 


v.  Tregea,  88  Cal.  334,  26  Pac.  237;  Fallbrook  Irr.  Dist.  v.  Bradley,  164 
[J   S.  112,  17  Sup.  Ct.  56,  41  L.  Ed.  369. 

In  the  case  of  Knowles  v.  New  Sweden  Irr.  Dist.,  16  Idaho  217,  101 
Pac.  81,  this  court  had  under  consideration  the  question  as  to  whether  an 
irrigation  district  had  jurisdiction  to  assess  benefits  to  lands  where  the 
owner  of  such  land  was  also  the  owner  of  a  water  right  sufficient  to  irri- 
gate said  lands  and  adequate  in  every  particular  to  satisfy  the  demands  of 
such  owner,  in  which  opinion  this  court  said :  "The  board  of  directors  of 
the  district  had  authority  to  determine  whether  or  not  plaintiff's  land 
would  be  benefited  by  the  organization  of  the  district  and  the  purchase 
of  the  irrigation  system,  and  the  only  way  appellant  can  call  in  question 
the  action  of  the  board  as  to  the  assessments  made  is  the  method  pro- 
vided by  statute."     The  statement  thus  made  in  this  opinion  was   in- 


The  trust  being  expressly  limited  in  its 
terms,  dedicating  and  devoting  all  lands 
owned  by  the  district  to  the  purposes  ot 
irrigation,  there  is  no  power  in  the  trus- 
tees, as  the  law  now  stands,  even  to  sell 
lands  which  by  reason  of  a  change  in  its 
plans  have  become  unnecessary  to  the 
irrigation  scheme.  Tulare  Irr.  Dist.  v. 
Collins,  154  Cal.  440,  442,  97  Pac.  1124 
(1908).  See  San  Francisco  v.  Itsell,  80 
Cal.  57,  22  Pac.  74  (1889). 

The  Wright  Act  (Stats.  1887,  p.  29) 
and  the  Bridgeford  Act,  amendatory 
thereof  (Stats.  1897,  p.  2G3)  do  not 
contemplate,  or  at  least  do  not  provide 
for,  a  situation  where  an  irrigation  dis- 
trict owns  lands,  which  lands  because  of 
change  in  its  plans  have  become  unnec- 
essary to  the  irrigation  scheme.  Tulare 
Irr.  Dist.  v.  Collins,  154  Cal.  440,  442, 
97  Pac.  1124  (1908). 
2.  Property  Exempt  from  Execution. 
Lands  which  by  reason  of  change  of 
plans  have  became  unnecessary  for  the 
purposes  of  the  irrigation  district,  in 
the  absence  in  the  statute  of  any  pro- 
vision for  their  disposition,  remain  im- 
pressed with  the  strict  trust,  the  same 
as  other  lands  in  the  district,  and  equally 
subject  to  assessment,  and  are  exempt 
from  execution,  levy  and  sale.  Tulare  Irr. 
Dist.  v.  Collins,  154  Cal.  440,  442,  97 
Pac.  1124  (1908).  See  San  Francisco  v. 
Le  Roy,  138  U.  S.  656,  34  L.  Ed.  1097,  11 


Sup.  Ct.  364  ( 1891 )  ;  Hart  v.  Burnett, 
15  Cal.  530  (1860)  ;  Seale  v.  Doone,  17 
Cal.  476,  484  (1861)  ;  Fulton  v.  Hanlow, 
20  Cal  450,  480  (1862);  Carlton  v. 
Townsend,  28  Cal.  219  (1865);  San 
Francisco  v.  Cannavan,  42  Cal.  541 
(1872)  ;  Ames  v.  City  of  San  Diego,  101 
Cal.  390,  35  Pac.  1005   (1894). 

The  principle  that  the  property  of  a 
quasi  public  corporation  which  is  not 
necessary  and  employed  in  the  exercise 
of  the  quasi  public  functions  assumed, 
may  be  become  subject  to  execution,  does 
not  apply  to  lands  held  by  a  public  cor- 
poration, as  an  irrigation  district,  which 
lands  are  held  under  an  express  trust, 
when  neither  a  sale  of  the  land  by  the 
district  nor  any  execution  sale  could  be 
made  without  doing  direct  violation  to 
the  terms  of  the  trust.  The  situation 
is  identical  with  that  of  Pueblo  lands. 
Tulare  Irr.  Dist.  v.  Collins,  154  Cal.  440,. 
443,  97  Pac.  1124   (1908). 

The  rule  exempting  property  of  quasi 
public  corporations  from  execution,  goes 
no  further  than  to  relieve  from  process 
such  property  as  is  necessary  to  the 
exercise  of  the  quasi  public  functions 
which  the  corporation  has  assumed,  and 
where  such  corporation  abandons  a  por- 
tion of  its  franchise,  so  much  of  the 
property  as  was  used  in  connection  with 
the  abandoned  franchise  may  become  sub- 
ject to  execution.     Tulare   Irr.  Dist.  v. 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     17 


tended  to  refer  to  the  action  of  the  county  commissioners  in  organizing 
the  irrigation  district,  and  not  to  the  action  of  the  board  of  directors,  as 
under  the  statute  the  board  of  county  commissioners  are  given  power 
and  jurisdiction  to  determine  the  question  whether  lands  to  be  taken 
into  a  proposed  irrigation  district  will  be  benefited  or  not.  This  question 
is  determined  when  the  district  is  organized.  In  this  connection  we 
may  observe  that  the  case  of  Knowles  v.  The  New  Sweden  Irr.  Dist. 
was  governed  by  the  provisions  of  the  act  of  March  6,  1899;  while  the 
case  under  consideration  is  governed  by  the  provisions  of  the  amendatory 
act  of  March  18,  1901.  Under  the  former  act  the  assessment  of  benefits 
was  not  made  prior  to  the  hearing  before  the  district  court  on  confirma- 
tion of  the  proceedings  of  the  organization  of  the  district;  while  under 
the  latter  act,  the  assessment  of  benefits  is  made  prior  to  the  hearing 


Collins,  154  Cal.  440,  443,  97  Pac.  1124 
(1908) .  See  Ames  v.  San  Diego,  101  Cal. 
390,  35  Pac.  1005  (1894);  San  Diego  v. 
Linda  Vista  Irr.  Dist.,  108  Cal.  189,  41 
Pac.  291  (1895);  Witter  v.  Missions 
School  Dist.,  121  Cal.  350,  53  Pac.  905, 
66  Am.  St.  Rep.  33  (1898)  ;  City  Street 
Imp.  Co.,  v.  Regents  of  University  of 
Cal.,  153  Cal.  776,  96  Pac.  801  (1908). 
The  remissness  of  the  directors  in  the 
discharge  of  their  duty  in  failing  to 
pay  a  judgment  against  the  district  un- 
der which  the  execution  is  issued,  will 
not  estop  the  district  from  insisting  that 
its  property  is  held  under  a  public  trust 
that  shall  be  protected  from  illegal  seiz- 
ure and  sale,  to  the  end  that  this  public 
trust  may  not  be  violated.  Tulare  Irr. 
Dist.  v.  Collins,  154  Cal.  440,  443,  97 
Pac.   1124    (1908). 

3.     Officers  of  Are  Public  Officers. 

Where  an  irrigation  district  is  organ- 
ized in  pursuance  of  the  laws  providing 
for  the  organization  of  such  districts  its 
officers  are  public  agents  or  officers  of 
the  state. 

United  States. — Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369, 
17   Sup.  Ct.  56    (1896). 

California. — People  v.  Selma  Irr.  Dist. 
98  Cal.  206,  208,  32  Pac.  1047  (1893); 
Quint  v.  Hoffman,  103  Cal.  506,  37  Pac. 
514  (1894)  ;  Perry  v.  Oray  Irr.  Dist.,  127 
Cal.  565,  60  Pac.  40  (1900). 
W.   &   M—  2 


Nebraska. — Board  of  Directors  of  Al- 
falfa Irr.  Dist.  v.  Collins,  46  Neb.  411, 
64  N.  W.   1086    (1895). 

4.      Powers   of    District. 

As  to  the  powers  of  an  irrigation  dis- 
trict and  of  the  officers  thereof,  see  post 
V,  A  and  B,  2;  VIII,  A,  this  note. 

I.      Right   of    Eminent    Domain. 
1.     Generally. 

The  application  of  water  to  arid  and 
semi-arid  lands  being  for  the  public  wel- 
fare, is  a  public  use  (See  I,  G,  this 
note)  and  irrigation  districts  being  quasi 
public  municipal  corporations  (See  I, 
H,  1,  this  note)  they  have  the  right  to 
exercise  the  power  of  eminent  domain 
for  the  purpose  of  acquiring  property  to 
enable  them  to  perfect  and  carry  out  the 
objects  of  their  formation ;  and  provis- 
ions necessary  for  the  condemnation  of 
lands  and  other  property  required  for 
their  purposes  are  usually  incorporated 
in  the  statutes  authorizing  their  forma- 
tion. 

United  States. — Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369,  17 
Sup.  Ct.  56  (1896);  San  Diego  L.  &  T. 
Co.  v.  National  City,  174  U.  S.  739,  43 
L.  Ed.  1154,  19  Sup.  Ct.  804  (1899); 
Clark  v.  Nash,  198  U.  S.  361,  49  L.  Ed. 
1085,  25  Sup.  Ct.  676    (1905). 


18 


Watek  and  Minekal  Cases. 


[Idaho 


before  the   district   court   on   confirmation,    and   by   provisions    of   the 
statute  is  directly  involved  in  such  hearing. 

After  a  re-examination  of  this  question  upon  the  argument  in  this  case, 
we  are  fully  satisfied  that  the  conclusion  of  the  court  in  the  Knowles 
Case  was  correct,  and  that  the  owner  of  land  within  a  proposed  irriga- 
tion district  cannot  quietly  sit  by,  fail  to  appear  or  file  objections  against 
the  organization  of  an  irrigation  district  and  the  inclusion  of  his  lands 
therein,  and  afterwards,  in  a  collateral  attack,  deny  the  jurisdiction  of 
the  district  to  assess  such  lands,  upon  the  ground  that  such  lands  will 
not  be  benefited  by  the  system  of  irrigation  works  proposed  for  such 
district.  It  no  doubt  was  the  intention  of  the  legislature,  in  enacting  the 
district  irrigation  law,  that  the  boundaries  of  the  district  should  be  so 
adjusted  as  to  include  within  the  district  only  such  lands  as  could  be 


Arizona. — Oury    v.    Goodwin,    3    Ariz. 
255,  26  Pac.  376   (1891). 

California.— Kelly  v.  Natoma  Water 
Co.,  6  Cal.  105  (1S55);  Davis  v.  Gale, 
32  Cal.  26,  91  Am.  Dec.  554  (1867)  ;  Lux 
v.  Hagin,  69  Cal.  304,  10  Pac.  674 
(1S86);  Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379  (1888).  fol- 
lowing Gilmer  v.  Limepoint,  18  Cal.  229, 
552  (1S01)  ;  In  re  Madera  Irr.  Dist.,  92 
Cal.  296,  309,  28  Pac.  272,  675,  27  Am. 
St.  Pep.  106,  14  L.  R.  A.  755  (1891); 
Aliso  Water  Co.  v.  Baker,  95  Cal.  268, 
30  Pac.  537  (1892);  Lindsay  Irr.  Co.  v. 
Mehrtens,  97  Cal.  676,  32  Pac.  802 
(1893)  ;  Eialto  Irr.  Dist.  v.  Brandon,  103 
Cal.  384,  37  Pac.  484  (1894)  ;  Emigrant 
Ditch  Co.  v.  Webber,  108  Cal.  88,  40 
Pac.  1061  (1895)  ;  Laguna  Drainage  Dist. 
v.  Charles  Martin  Co.,  144  Cal.  209,  77 
Pac.  933  (1904);  San  Joaquin  &  Kings 
River  C.  &  Irr.  Co.  v.  Stanislaus  County, 
155  Cal.  21,  99  Pac.  365   (1908). 

Colorado. — Yunker  v.  Nichols,  1  Colo. 
551  (1872);  Schilling  v.  Rominger,  4 
Colo.  100  (1878);  Coffing  v.  Left  Hand 
Ditch  Co.,  6  Colo.  443  (1882)  ;  Tripp  v. 
Overrocker,  7  Colo.  72,  1  Pac.  695 
(1S83);  Golden  Canal  Co.  v.  Bright, 
8  Colo.  144,  6  Pac.  142  (1885); 
Downing  v.  More,  12  Colo.  316,  20  Pac. 
766  (1889)  ;  Saint  v.  Guerrerio,  17  Colo. 
448,  30  Pac.  335,  31  Am.  St.  Rep.  320 
(1892);    San  Luis  Land  C.  &  Imp.  Co. 


v.   Kenilworth   Canal    Co.,   3    Colo.   App. 
244,  32  Pac.  860   (1893). 

Idaho. — Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046 
(1909)  ;  Knowles  v.  New  Sweden  Irr. 
Dist.,  16  Idaho  217,  101  Pac.  81  (1908). 
Montana. — Ellinghouse  v.  Taylor,  19 
Mont.   402,  48   Pac.   757    (1S97). 

Nebraska. — Paxton  &  Hersey  Irr.  C. 
&  L.  Co.  v.  Farmers'  &  Merchants'  Irr. 
&  L.  Co.,  45  Neb.  884,  64  N.  W.  343,  50 
Am.  St.  Rep.  585,  29  L.  R.  A.  853  (1895); 
Board  of  Directors  of  Alfalfa  Irr.  Dist. 
v.  Collins,  46  Neb.  411,  64  N.  W.  1086 
(1895). 

Oregon. — Umatilla  Irr.  Co.  v.  Barnhart, 
22    Or.  389,  30  Pac.  37    (1S92). 

Texas. — Maghee  Irr.  Ditch  Co.  v.  Hud- 
son, 85  Tex.  587,  22  S.  W.  39S   (1893). 

Utah.— Nash  v.  Clark,  27  Utah  158, 
75  Pac.  371,  101  Am.  St.  Rep.  953,  1  L. 
R.  A.  (N.  S.)  208  (1904),  affirmed  198 
U.  S.  361,  49  L.  Ed.  1085,  25  Sup.  Ct. 
676   (1905). 

Washington. — Lewis  County  v.  Gordon, 
20  Wash.  80,  54  Pac.  779  (1898— Dun- 
bar, J.,  dissenting);  Prescott.  Irr.  Co. 
v.  Flathers,  20  Wash.  454,  55  Pac.  635 
(1899). 

The  use  to  which  water  and  other 
property  taken  is  to  be  put,  being  to 
satisfy  a  great  public  want  or  public 
exigency,  makes  it  a  public  use  within 
the    meaning    of    the    Constitution,    and 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     19 

irrigated  from  the  system  proposed,  and  would  be  more  or  less  benefited 
by  the  construction  or  purchase  of  such  system;  but  in  fixing  the 
boundaries  of  the  district  the  statute  does  not  limit  the  land,  to  be  in- 
cluded therein,  to  lands  which  are  being  used  for  any  particular  purpose 
or  to  lands  which  require  water  for  irrigation  at  the  particular  time  the 
d; strict  is  organized.  The  mere  fact  that  the  railroad  company  for  the 
time  being  is  using  its  lands  for  right  of  way  and  depot  purposes  is  not 
a  reason  why  such  lands  will  not  be  benefited  by  a  system  of  irrigation 
works  controlled  by  the  district  or  a  reason  why  such  lands  should  not  be 
included  within  the  boundaries  of  such  district- 

The  question  whether  lands  proposed  to  be  incorporated  within  an 
irrigation  district  will  be  beneficed  has  reference  to  the  land  in  its  natural 
state,  and  not  to  the  use  to  which  the  land  is  being  put  at  the  time  the 


the  state  is  not  limited  to  any  given 
mode  of  applying  that  property  to  satis- 
fy the  want  or  meet  the  exigency.  Tur- 
lock  Irr.  Dist.  v.  Williams,  76  Cal.  360, 
18  Pac.  378  (1888),  following  Gilmer  v. 
Limepoint,  18  Cal.  229,  252   (1861). 

The  language  of  section  12  of  the 
Wright  Act,  authorizing  the  board  of 
directors  of  an  irrigation  district  to 
acquire  property  for  the  benefit  of  the 
district,  is  broad  enough  to  include  pipe 
lines,  flumes  or  other  conduits  usually 
employed  in  works  of  irrigation,  for  con- 
veying water,  even  if  not  necessarily  in- 
cluded in  the  term  "ditches  and  canals." 
Rialto  Irr.  Dist.  v.  Brandon,  103  Cal. 
384,  37  Pac.  484   (1894). 

2.  Right  of  Way  over  Private  Land. 
An  irrigation  district  is  not  required 
to  resort  to  condemnation  proceedings 
under  the  power  of  eminent  domain, 
where  it  can  contract  satisfactorily  with 
the  owner  for  right  of  way ;  and  is  em- 
powered to  make  contract  for  right  of 
way,  in  consideration  of  which  the 
owner  is  to  have  the  privilege  of  pur- 
chasing water  from  the  district  for  the 
purpose  of  irrigation;  and  where  under 
such  contract,  water  is  supplied  to  the 
landowner  for  a  term,  but  is  afterwards 
withdrawn  for  the  purpose  of  supplying 
it  to  others,  mandamus  will  lie  to  com- 
pel the  company  to  continue  to  supply 
water   according   to   the      contract.  Mer- 


rill v.   Southside  Irr.  Co.,   112  Cal.  426, 
44  Pac.  720    (1896). 

See  post  VIII,  B,  2,  this  note. 

3      Right  of  Way  over  Public    Land. 

Where  a  right  of  way  for  an  irriga- 
tion ditch,  pipe  line,  etc.,  has  not  been  ac- 
quired over  public  lands  of  the  United 
States  prior  to  their  entry  as  a  home- 
stead, they  cannot  be  subsequently  ac- 
quired except  by  arrangement  with  the 
entryman  or  by  taking  proper  proceed- 
ings to  appropriate  the  land  for  that 
purpose  (Rasmussen  v.  Blust,  82  Neb. 
678,  120  N.  W.  184—1908)  ;  and  where 
an  irrigation  canal  has  been  constructed 
through  the  public  lands  of  the  United 
States  without  securing  the  consent  of 
the  general  government  or  taking  a  right 
of  way  by  deed  from  the  homestead  entry- 
man,  and  the  entryman  afterwards 
abandons  the  entry  and  allows  it  to  re- 
vert to  the  general  government,  the  irri- 
gation district  or  proprietor  of  the  canal 
will  have  no  claim  to  the  land  over  which 
it  runs  as  against  a  subsequent  entry- 
man  (Rasmussen  v.  Blust,  82  Neb.  678, 
120  N.  W.  184—1908)  ;  and  the  mere 
approval  of  a  map  and  plans  of  a  canal 
or  ditch  and  reservoir  subject  to  all  ex- 
isting vested  rights,  will  not  give  a  right 
as  against  a  subsequent  entryman  who 
enters  upon  and  occupies  the  lands  under 
the  pre-emption  laws.    Baldridge  v.  Leon 


20 


Water  and  Mineral  Cases. 


[Idaho 


district  is  organized.  We  think  this  construction  clearly  appears  from 
the  language  of  the  statute.  In  the  very  nature  of  things,  an  irrigation 
district  must  cover  an  extensive  area  of  land,  and  if  only  land  requiring 
the  application  of  water,  because  of  the  use  being  made  of  it  at  the  time 
the  district  is  organized,  can  be  included  within  the  boundaries  of  the 
district,  then  it  might  be  impossible  to  create  such  district  out  of  con- 
tiguous territory;  and  the  commissioners  would  be  required  to  exclude 
from  the  boundaries  of  such  district  tracts  of  land  which,  although  the 
same  did  not  require  water  at  the  particular  time  of  the  organization 
of  such  district,  yet  upon  the  happening  of  some  event  would  be  placed 
in  the  same  condition  as  other  lands  requiring  water  at  the  time  of  the 
organization  of  such  district;  and  the  boundaries  of  the  district  would 
necessarily  include  therein  much   land   of   irregular   descriptions   which 


Lake    D.    &    R.    Co.     (Colo.    App.),    80 
Pac.  477    (1905). 

4.     Complaint  in  Condemnation. 

The  procedure  for  condemnation,  under 
power  of  eminent  domain,  of  lands,  etc., 
by  an  irrigation  district  for  its  uses, 
does  not  differ  in  the  essential  particu- 
lars from  proceedings  to  condemn  by  any 
other  public  municipal  corporation.  The 
complaint  or  petition  must  state  facts 
showing  that  the  purpose  for  which  the 
property  is  sought  to  be  taken  is  a  pub- 
lic use.  Miocene  Ditch  Co.  v.  Lyng,  138 
Fed.  544,  70  C.  C.  A.  458  (1905).  See 
London  v.  Sample  Lumber  Co.,  91  Ala. 
606,  8  So.  281,  512  (1890);  McCulley 
v.  Cunningham,  96  Ala.  583,  11  So.  694 
(1893);  Evergreen  Cemetery  Assoc,  v. 
Beecher,  53  Conn.  551,  5  Atl.  353 
(1886)  ;  Farneman  v.  Mt.  Pleasant  Ceme- 
tery Assoc,  135  Ind.  344,  35  N.  E.  271 
(1893)  ;  Great  Western  N.  G.  &  O.  Co. 
v.  Hawkins,  30  Ind.  App.  557,  66  N.  E. 
765  (1903);  New  Orleans  Terminal  Co. 
v.  Teller,  113  La.  Ann.  733,  37  So.  624 
(1904);  In  re  New  York  Cent.  &  II. 
River  R  Co.,  5  Hun  (N.  Y.)  86  (1875)  ; 
Valley  R.  Co.  v.  Bohin,  34  Ohio  St.  114 
(1877);  Shick  v.  Pennsylvania  R.  Co., 
1  Pears.  (Pa.)  259  (1866);  Wisconsin 
Water  Co.  v.  Winans,  85  Wis.  26,  54 
N.  W.  103,  39  Am.  St.  Rep.  813,  20  L. 
R.  A.   662    (1893);   Compare   Chicago  & 


A.  R.  Co.  v.  City  of  Pontiac,  169  111. 
155,  48  N.  E,  485   (1897). 

It  is  necessary  in  order  to  give  the 
court  jurisdiction  that  the  complaint  or 
petition  should  directly  state  that  the 
taking  of  the  land,  etc.,  is  necessary  to 
such  public  use.  See  Sanford  v.  City  of 
Tucson,  8  Ariz.  247,  71  Pac.  903  (1903)  ; 
Contra  Costa  C.  M.  R.  Co.  v.  Moss,  23 
Cal.  323  (1863);  Bennett  v.  City  of 
Marion,  106  Iowa  628,  76  N.  W.  844 
(1898);  Grand  Rapids  N.  &  L.  S.  R. 
Co.  v.  Van  Driele,  24  Mich.  409  (1872)  ; 
Flint  &  P.  M.  L.  Co.  v.  Detroit  &  B.  C. 
R.  Co.,  64  Mich.  350,  31  N.  W.  281  (1S87 
— "required"  equal  to  the  statutory 
"necessary")  ;  City  of  Helena  v.  Harvey, 
6  Mont.  114,  9  Pac.  903  (1886);  In  re 
Meagher,  35  Misc.  (N.  Y.)  601,  72  N. 
Y.  Supp.  157  (1901);  In  re  Union  El. 
R.  Co.,  55  Hun  (N.  Y.)  611,  8  N.  Y. 
Supp.  813  (1890);  City  of  Dallas  v. 
Hallock,  44  Or.  246,  75  Pac.  204  (1904)  ; 
Fork  Ridge  Baptist  Cemetery  Assoc,  v. 
Redd,  33  W.  Va.  262,  10  S.  E.  405  (1889). 

A  complaint  in  such  an  action  showing 
the  land  is  sought  for  the  purpose  of 
establishing  and  maintaining  a  ditch 
or  pipe  line  or  lines  across  the  land 
sought  to  be  condemned,  which  ditch  and 
pipe  lines  are  to  be  used  in  connection 
with  an  irrigating  system,  shows  a  pub- 
lic use  (Rialto  Irr.  Dist.  v.  Brandon,  103 
Cal.  384,  37  Pac.  484—1894),  because  in 


1909]  Oregon  Shokt  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     21 


would  be  excepted  from  the  operation  of  the  district  irrigation  law.  We 
do  not  believe  that  this  was  intended  by  the  statute,  but,  on  the  con- 
trary, that  the  board  of  commissioners  are  authorized  and  empowered 
to  incorporate  within  a  proposed  irrigation  district  such  lands  as  in  their 
natural  state  would  be  benefited  from  the  system  of  works  proposed. 
We  are  satisfied  that  by  the  enactment  of  the  irrigation  law  under  con- 
sideration the  legislature  intended  to  confer  jurisdiction  and  power  upon 
the  board  of  county  commissioners  to  include  within  the  boundaries  of 
an  irrigation  district  all  lands  which  in  their  natural  state  would  be 
benefited  by  irrigation  and  are  susceptible  of  irrigation  by  one  system, 
regardless  of  the  use  to  which  any  particular  tract  of  land  may  be  put 
at  the  time  the  district  is  organized;  and  although  such  use  may  be  of 
such  a  character  as  to  render  such  land  unfit  for  cultivation,  and  make 
it  unnecessary  to  apply  water  to  such  land  to  aid  in  the  use  to  which 
the  same  is  put. 


such  a  proceedings  the  court  will  pre- 
sume that,  in  the  building  of  such  a  ditch 
or  pipe  line,  the  irrigation  district  or 
water  company  is  acting  for  the  purpose 
of  serving  the  public.  See  Central 
Georgia  R.  Co.  v.  Union  Springs  &  N. 
R.  Co.,  144  Ala.  639,  39  So.  473,  2L.R. 
A.    (N.   S.)    144    (1900). 

5.       Condemning     Specific     Piece     of 
Property — Determination. 

It  is  not  necessary  in  order  to  author- 
ize an  irrigation  district  to  exercise  the 
power  of  eminent  domain  that  it  should 
allege  in  its  complaint  or  petition,  or 
show  on  the  hearing,  that  there  is 
absolutely  no  other  way  than  the  one 
designated  in  the  complaint  by  which 
water  could  be  brought  on  its  lands 
(Rialto  Irr.  Dist.  v.  Brandon,  103  Cal. 
384,  37  Pac.  484—1894)  ;  because  the 
question  whether  or  not  the  district 
could  construct  its  ditches  or  pipe  lines 
on  other  property,  so  that  there  is  no 
real  necessity  to  acquire  an  easement  on 
the  designated  property,  is  not  open  to 
investigation  or  determination.  See  St. 
Louis  &  S.  F.  R.  Co.  v.  Southwestern  T. 
&  T.  Co.,  121  Fed.  276,  58  C.  C.  A.  198 
(1903).  But  when  the  necessity  of 
taking  a  specific  piece  of  property  for 
the  use   of  the   district  is  contested,  it 


should  be  determined  by  the  court  in 
limine  before  appointing  the  com- 
missioners to  assess  the  damage  that 
will  be  sustained  by  reason  of  the  taking. 
Portneuf  Irr.  Co.  Limited  v.  Budge,  16 
Idaho  116,  100  Pac.  1046  (1909).  See 
Hubbard  v.  Great  Falls  Mfg.  Co.,  80  Me. 
39,  12  Atl.  878  (1888)  ;  St.  Joseph  Term- 
inal R.  Co.  v.  Hannibal  &  St.  J.  R.  Co., 
94  Mo.  535,  6  S.  W.  691  (1887)  ;  Emerson 
v.  Eldorado  Ditch  Co.,  18  Mont  247,  44 
Pac.  969  (1896);  In  re  City  of  New 
York,  22  App.  Div.  (N.  Y.)  124,  47  N.  Y. 
Supp.  965  (1897).  As  to  necessary  al- 
legations in  complaint  or  petition  seek- 
ing condemnation  of  water  or  other 
property  already  appropriated  to  a 
public  use,  see  post  I,  1,    6,  this  note. 

6.       Condemnation     of     Appropriated 
Waters,  etc. 

The  complaint  or  petition  of  an  irriga- 
tion company  seeking  to  condemn,  water, 
etc.,  already  appropriated  to^  a  public 
use,  must  allege  such  facts  as  will  show 
that  the  use  for  which  the  condemnation 
is  sought  is  more  necessary  than  the 
public  use  to  which  the  property  is  at 
present  applied,  the  question  of  the 
relative  importance  of  the  two  uses  being 
one  for  judicial  determination  (City  of 
St.  Helena  v.  Rogan,  26  Mont.  452,  68 


22 


Watee  and  Mineral  Cases. 


[Idaho 


It  seems  reasonable,  and  we  believe  we  are  justified  in  concluding,  that 
although  water  may  not  be  applied  to  a  beneficial  use  upon  a  particular 
tract  of  land  in  an  irrigation  district,  yet  if  a  system  of  irrigation  is  pro- 
vided by  the  district  from  which  the  lands  of  such  district  are  irrigated 
and  thereby  benefited,  it  necessarily  benefits  all  lands  of  the  district, 
whether  any  particular  tract  may  require  or  use  thereon  the  water  pro- 
vided by  such  system.  If  this  be  true,  then  it  would  follow  that  although 
the  right  of  way  and  station  grounds  of  the  railway  company  were  not 
in  a  condition  to  have  water  applied  to  such  lands  in  the  use  made  of 
them  at  the  time  the  district  was  organized,  yet  such  lands  would  neces- 
sarily be  benefited  by  reason  of  the  fact  that  the  application  and  use  of 
the  water  from  such  system  to  other  lands  adjacent  and  surrounding 
the  lands  of  the  railroad  company  benefited  such  lands.     The  question 


Pac.  798,  27  Mont.  135,  69  Pac.  709— 
1902)  ;  and  the  necessity  will  not  be 
measured  by  the  extent  to  which  the 
use  is  actually  applied,  but  rather  to 
the  public  nature  and  character  of  the 
use  to  which  it  has  been  previously- 
applied.  Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046 
(1909). 

And  where  an  irrigation  district  con- 
demns a  water  right  purchased  by  a 
landowner  from  a  canal  company,  it  does 
not  thereby  interfere  with  or  interrupt 
the  dedication  already  effected  under 
the  provisions  of  the  Idaho  Constitution 
(§  4,  art.  XV)  :  but  the  landowner  will 
be  required  to  pay  such  charges  as  may 
be  established  in  conformity  with  law, 
for  the  use  of  the  water.  Knowles  v. 
New  Sweden  Irr.  Dist.,  16  Idaho  217, 
101   Pac.  81    (1908). 

The  necessity  for  the  taking  being 
shown,  one  irrigation  canal  company  may 
condemn  a  part  of  the  right  of  way  of 
another  irrigation  canal  company  for 
the  purpose  of  enlarging  the  old  canal 
to  sufficient  capacity  to  carry  such  an 
additional  volume  of  water  as  the  needs 
of  the  latter  company  may  require 
(Portneuf  Irr.  Co.  Limited  v.  Pudge,  16 
Idaho  116,  100  Pac.  1046—1909);  and 
all  that  the  subjected  irrigation  company 
is  entitled  to  urnler  the  act  is  that  its 
property   shall    not   be   taken   for   public 


use  without  just  compensation, — a  fair 
return  on  the  reasonable  value  of  its 
property  at  the  time  it  is  being  used 
for  a  public  benefit.  San  Joaquin  <Jt 
Kings  River  Canal  &  Irr.  Co.  v.  Stanis- 
laus County,  155  Cal.  21,  99  Pac.  365 
(1908).  See  San  Diego  Land  &  T.  Co. 
v.  National  City,  174  U.  S.  739,  43  L. 
Ed.  1154,  19  Sup.  Ct  804  (1899). 
7.      Jury    Trial. 

The  method  of  procedure  in  proceed- 
ings by  an  irrigation  district  for  con- 
demnation of  land,  etc.,  is  the  feme  as 
similar  proceedings  by  any  other  munici- 
pal or  public  corporation,  and  the  parties 
to  such  proceedings  by  an  irrigation  dis- 
trict will  be  entitled  to  a  jury  trial 
wherever  the  parties  would  be  entitled 
to  such  a  trial  on  similar  proceedings 
by  any  other  municipal  or  public  corpora- 
tion. In  Idaho  the  parties  are,  by 
statute,  entitled  to  trial  by  jury.  Port- 
neuf Irr.  Co.  Limited  v.  Pudge,  16  Idaho 
116,  100  Pac.  1046  (1909). 
8.     Damages. 

In  condemnation  by  an  irrigation  dis- 
trict, the  same  as  in  condemnation  by 
any  municipal  or  public  corporation, 
before  the  taking  over  of  the  property 
for  public  use,  the  damages  must  first 
be  duly  and  regularly  ascertained  and 
assessed',  and  payment  thereof  madte. 
See  Portneuf  Irr.  Co.  Limited  v.  Budge, 
10  Idaho  110,  100  Pac.  1046    (1909). 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist. 


23 


of  benefits,  however,  to  the  lands  using  water  and  the  lands  not  requir- 
ing water  is  one  merely  of  degree,  and  the  extent  of  the  benefits  as- 
sessed to  the  lands  of  the  district  is  a  matter  committed  to  the  jurisdic- 
tion of  the  board  of  directors  of  such  district. 

In  the  case  of  Board  of  Directors  v.  Tregea,  88  Cal.  334,  26  Pac.  237, 
the  Supreme  Court  of  California  had  under  consideration  the  district 
irrigation  law  of  that  state  which,  in  the  particulars  involved  in  this  case, 
is  substantially  the  same  as  the  irrigation  law  of  this  state,  and  in  that 
case  the  court  said :  "The  idea  of  a  city  or  town  is  of  course  associated 
with  the  existence  of  streets,  to  a  greater  or  less  extent  lined  with 
shops  and  stores  as  well  as  dwelling  houses,  but  it  is  also  a  notorious 
fact  that  in  many  of  the  towns  and  cities  of  California  there  are  gardens 
and  orchards  inside  the  corporate  boundaries,  requiring  irrigation.     It 


The  fact  that  the  Idaho  Statute  grants 
to  a  defendant  in  condemnation  proceed- 
ings the  right  of  a  trial  subsequent  to 
the  assessment  of  damages  by  the  com- 
missioners, and  also  the  right  of  appeal, 
does  not  render  the  provision  of  the 
statute,  authorizing  the  appointment 
of  the  commissioners  and  assessment  of 
damages  and  the  taking  of  possession 
after  payment  of  the  amount  so  assessed, 
obnoxious  to  the  Constitution.  Portneuf 
Irr.  Co.  Limited  v.  Budge,  16  Idaho  116, 
100  Pac.  1046   (1909). 

Where  damages  have  been  assessed  in 
condemnation  proceedings  pursuant  to 
section  5221  of  Idaho  Revised  Codes, 
as  of  the  date  of  the  issue  of  the  sum- 
mons, and  the  damages  so  assessed  are 
paid  to  the  landowners,  the  fact  that  the 
plaintiff  in  condemnation  may  subse- 
quently commit  waste  or  damage  on  the 
lands  so  condemned  and  may  not  prose- 
cute the  preceedings  to  final  judgment, 
can  in  no  way  prejudice  the  landowner 
whose  damages  are  assessed  as  of  a 
previous  date.  Portneuf  iTr.  Co.  Limi- 
ted v.  Budge,  16  Idaho  116,  100  Pac. 
1046   (1909).  1 

J.    Interest  and  Property  in  the  V/ater. 

An  irrigation  district,  being  a  quasi 
public  municipal  corporation,  holds  for 
the  public  benefit  all  interests  and  rights 
with  which  it  is  vested;   no  proprietary 


interest  vests  in  the  district  in  the  legal 
sense  of  that  term.  In  districts  organ- 
ized under  the  California  Irrigation  Dis- 
trict Laws  the  legal  title  vests  in  the 
district  in  trust  only  for  the  landowners 
as  beneficiaries,  the  rights  of  such  land- 
owners are  private  rights  within  the 
protection  of  section  13  of  article  I  of 
the  State  Constitution  and  section  1  of 
the  14th  Amendment  to  the  Constitution 
of  the  United  States,  and  the  state 
legislature  has  no  power  to  dispose 
absolutely  of  the  property,  depriving  the 
beneficiary  owners  thereof  without  due 
process  of  law.  Merchants'  Nat.  Bank 
v.  Escondido  Irr.  Dist.,  144  Cal.  329,  77 
Pac.    937    (1904). 

The  New  Mexico  statute  does  not  con- 
fer upon  the  officers,  or  a  majority 
interested  in  a  ditch  thereby  incorpo- 
rated, the  power  to  change  the  ancient 
course  of  a  stream  against  the  consent 
of  the  owners  who  would  be  injuriously 
affected  thereby.  Candelaria  v.  Vallejos, 
13  N.  M.  146,  81  Pac.  589    (1905). 

The  Oregon  Irrigation  District  Law 
(Laws  1895,  p.  19)  merely  authorizes 
the  organization  of  public  corporation 
for  the  purpose  of  acquiring  and  owning 
irrigation  ditches,  canals,  reservoirs, 
works  and  water  rights,  and  distributing 
water  to  the  settlers  within  the  bound- 
aries of  the  district;  and  the  authority 
vested  in  the  board  of  directors  to  make 


24 


Water  and  Mineral  Cases. 


[Idaho 


is  equally  notorious  that  in  many  districts  lying  outside  of  the  corporate 
limits  of  any  city  or  town,  there  are  not  only  roads  and  highways,  but 
dwelling  houses,  outhouses,  warehouses,  and  shops.  With  respect  to 
those  things  which  determine  the  usefulness  of  irrigation  there  is  only 
a  difference  of  degree  between  town  and  country.  *  *  *  It  being 
equally  clear  and  notorious  as  matter  of  fact  that  there  are  cities  and 
towns  which  not  only  may  be  benefited  by  irrigation,  but  actually  have  in 
profitable  use  extensive  systems  for  irrigating  lands  within  their  corpo- 
rate limits,  it  cannot  be  denied  that  the  supervisors  of  Stanislaus  County 
had  the  power  to  determine  that  the  lands  comprising  the  City  of  Modesto 
would  be  benefited  by  irrigation,  and  might  be  included  in  an  irriga- 
tion district.  *  *  *  In  the  nature  of  things,  an  irrigation  district 
must  cover  an  extensive  tract  of  land,  and,  no  matter  how  purely  rural 
and  agricultural  the  community  may  be,  there  must  exist  here  and  there 


necessary  and  needed  by-laws  for  the 
distribution  of  water  to  all  the  lands, 
and  to  do  other  lawful  acts  necessary 
to  be  done  in  order  that  sufficient  water 
may  be  furnished  to  each  landowner,  is 
for  the  purpose  of  carrying  out  the 
powers  granted  to  the  corporation,  and 
does  not  vest  the  district  with  super- 
vision or  control  over  the  rights  of  the 
individuals;  it  cannot  settle  disputes 
between  individuals,  nor  can  it  regulate 
or  control  water  rights  belonging  to 
private  persons;  and  it  has  no  such 
interest  in  the  waters  of  the  district 
as  entitles  its  officers  to  maintain  a 
suit  in  equity  to  have  determined  the 
respective  rights  of  landowners  in  the 
distribution  to  the  waters  under  the 
system.  Little  Walla  Walla  Irr.  Dist. 
v.  Preston,  46  Or.  5,  78  Pac.  982   (1904). 

In  an  irrigation  district  organized 
under  the  Utah  Statute  (Laws  1884,  p. 
127)  the  parties  owning  land  under  the 
system  of  canals  of  such  district,  who 
have  an  interest  in  and  are  entitled 
to  the  water  of  such  canals,  become  mem- 
bers of  the  district  as  tenants  in  com- 
mon of  its  property,  and  neither  the 
district  nor  its  trustees  can  thereafter 
transfer  any  of  the  interests  of  such 
landholders  within  or  under  its  juris- 
diction. Thompson  v.  McFarland,  29 
Utah  455,  82  Pac.  478    (1905). 


K.      Bankruptcy  and  Dissolution. 

An  irrigation  district  being  a  quasi 
public  municipal  corporation  engaged  in 
administrating  the  public  use  of  supply- 
ing water  for  irrigation  purposes,  is  not 
subject  to  be  adjudged  an  involuntary 
bankrupt  under  the  Federal  Bankruptcy 
Law.  In  re  Bay  City  Bank  Co.,  135  Fed. 
850     (1905). 

As  to  method  of  procedure  against  an 
irrigation  district  refusing  or  neglecting 
to  pay  judgment  procured  against  it 
see  post  VI,  K,  and  VIII,  C,  2,  this  note. 

An  irrigation  district  cannot  be  dis- 
solved for  misuser  or  nonuser  of  its 
corporate  powers,  in  the  absence  of  ex- 
press provisions  conferring  that  power 
upon  the  courts.  People  v.  Selma  Irr. 
Dist.,  98  Cal.  206,  208,  32  Pac.  1047 
(1893)  ;  Quint  v.  Hoffman,  103  Cal.  508, 
37   Pac.   514    (1894). 

Where  an  irrigation  district  which  had 
been  organized  under  the  Utah  Statute 
(Laws  1884,  p.  127)  had  secured  an 
order  from  the  court  restraining  inter- 
ference with  the  ditches  belonging  to 
the  district,  was  thereafter  dissolved 
under  the  provisions  of  the  statute,  the 
restraining  order  thereupon  became  func- 
tus officio,  and  persons  theretofore  re- 
strained, upon  such  dissolution,  were 
remitted  to  their  original  right  as  indi- 
vidual   landowners.      Thompson    v.    Mc- 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     25 

within  its  limits  a  shop  or  warehouse  covering  a  limited  extent  of  ground 
that  can  derive  no  direct  benefit  from  the  use  of  water  for  irrigation. 
Here,  again,  the  difference  between  town  and  country  is  one  of  degree 
only, 'and  a  decision  in  the  interest  of  shopowners  in  towns  that  their 
lots  'cannot  be  included  in  an  irrigation  district  would  necessarily  cover 
the  case  of  the  owner  of  similar  property  outside  of  a  town.  It  is  nowhere 
contended  by  the  appellant  that  in  organizing  irrigation  districts  it  is 
the  duty  of  the  supervisors  to  exclude  by  demarcation  every  minute  tract 
or  parcel  of  land  that  happens  to  be  covered  by  a  building  or  other 
structure  which  unfits  it  for  cultivation,  and  certainly  the  law  could  not 
be  so  construed  without  disregarding  many  of  its  express  provisions, 
and  at  the  same  time  rendering  it  practically  inoperative.  We  construe 
the  law  to  mean  that  the  board  may  include  in  the  boundaries  of  the 


Farland,    29    Utah    455,    82    Pac.    478 
(1905). 

II.     Proceedings  for  Organization. 

A.      In    General. 

The  proceeding  for  the  organization  of 

an  irrigation  district  is  purely  statutory, 

and  the  method  prescribed  in  the  statute 

must   be   strictly   pursued   and   complied 

with.      Gutierres    v.    Albuquerque    L.    & 

Irr.   Co.,   188  U.   S.   545,  47   L.  Ed.   588, 

23  Sup.  Ct.  338   (1903)  ;  Ahern  v.  Board 

of  Directors  of  High  Line  Irr.  Dist.,   39 

Colo.   409,   89   Pac.   963    (1907);    Nampa 

&  M.   Irr.  Dist.  v.  Brose,   11  Idaho  474, 

83  Pac.  499    (1905);   Settlers'  Irr.  Dist. 

v.  Settlers'  Canal  Co.,  14  Idaho  504,  94 

Pac.  829    (1908).     See  Central  Irr.  Dist. 

v.   De  Lappe,   79   Cal.   351,   21   Pac.   797 

(1890)  ;  Modesto  Irr.  Dist.  v.  Tregea,  88 

Cal.   334,   26   Pac.  237    (1891);   affirmed 

in  164  U.  S.  179,  41  L.  Ed.  395   (1896)  ; 

Cullen  v.  Glendora  Water  Co.,   113  Cal. 

503,   512,  45  Pac.   822,    1047—1896    (see 

39   Pac.   769—1895)  ;   In  re  Central  Irr. 

Dist.,    117    Cal.    382,    397,    49    Pac.    354 

(1897)  ;  Crippin  v.  X.  Y.  Irr.  Ditch  Co., 

32  Colo.  447,  76  Pac.  794  (1904)  ;  Pioneer 

Irr.    Dist.    v.    Campbell,    10    Idaho    159, 

77  Pac.  328  (1904)  ;  Little  Walla  Walla 
Irr.  Dist.  v.  Preston,  46  Or.  5,  78  Pac. 
982  (1904)  ;  Ryan  v.  Tutty,  13  Wyo.  12&, 

78  Pac.  661  ( 1904) .  But  the  statutes  pre- 
scribing the  manner  in  which  an  irriga- 
tion district  may  be  formed  are  to  be 


liberally  Construed  to  carry  out  the 
purpose  of  the  law.  Central  Irr.  Dist. 
v.  De  Lappe,  79  Cal.  351,  21  Pac.  825 
(1889).     See  ante  I,   E,   1,  this  note. 

The  irrigation  district  laws  provide, 
as  the  first  step  in  the  organization,  a 
petition  signed  by  landowners  within 
the  proposed  district.  The  qualification 
of  signers  and  the  number  of  signers 
required  varies,  dependent,  in  some 
states,  as  in  Idaho,  on  the  sparsity  or 
density  of  the  population  in  the  proposed 
district  (see  post  II,  B,  3,  this  note). 
The  action  of  the  board  to  which  the 
petition  is  presented  must  be  confirmed 
by  a  vote  of  the  electors  within  the 
proposed  district  signifying  assent  to 
the  organization  by  a  majority  vote. 
See   post  II,  B,  8,  this  note. 

There  is  nothing  in  the  statute  pre- 
scribing the  form  of  a  petition  for  the 
formation  of  an  irrigation  district.  Fogg 
v.  Perris  Irr.  Dist.,  154  Cal.  209,  213, 
97   Pac.   316    (1908). 

The  proceedings  for  the  organization 
of  an  irrigation  district  are  entirely 
separate  and  distinct  from  the  proceed- 
ings for  the  confirmation  of  the  district 
after  its  organization.  People  v.  Perris 
Irr.    Dist.,    142    Cal.    601,    76    Pac.    381 

(1904).     See  post  III,  this  note. 

B.     Petition. 
1.    Generally. 
The  petition   for  the  organization  of 


26 


Watee  and  Mineral  Cases. 


[Idaho 


district  all  lands  which  in  their  natural  state  would  be  benefited  by  irriga- 
tion and  are  susceptible  of  irrigation  by  one  system,  regardless  of  the 
fact  that  buildings  or  other  structures  may  have  been  erected  here  and 
there  upon  small  lots,  which  are  thereby  rendered  unfit  for  cultivation, 
at  the  same  time  that  their  value  for  other  purposes  may  have  been 
greatly  enhanced." 

In  the  case  of  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  17  Sup. 
Ct.  56,  41  L.  Ed.  369,  the  Supreme  Court  of  the  United  States,  after 
quoting  the  above  extract  from  Modesto  Irr.  Dist.  v.  Tregea,  and  also 
having  under  review  the  district  irrigation  law  of  California,  says: 
"The  legislature  not  having  itself  described  the  district  has  not  decided 
that  any  particular  land  would  or  could  possibly  be  benefited  as  described, 
and  therefore  it  would  be  necessary  to  give  a  hearing  at  some  time  to 


an  irrigation  district  must  be  signed  by 
the  number  of  persons  designated  in  the 
statute,  and  the  signers  must  have  the 
qualifications  prescribed  therein;  but 
after  the  organization  of  a  district  has 
been  perfected  and  that  organization 
has  been  confirmed  by  judgment  and 
decree  uf  the  court,  irregularities  in  the 
petition  for  organization  in  that  it  was 
not  signed  by  bona  fide  freeholders  as 
required  by  the  statute,  do  not  render 
the  proceedings  void  after  such  confirma- 
tion, the  purpose  of  the  Irrigation  Laws 
(Cal.  Stats.  1SS0,  p.  212)  being  to 
furnish  a  barrier  against  attack  on  the 
ground  of  fraud  after  confirmation  pro- 
ceedings had.  Fogg  v.  Perris  Irr.  Dist., 
154  Cal.  209,  97   Pac.  316    (1908). 

The  petition  for  the  organization  of 
a  district,  when  properly  drawn  and  duly 
Bigned  and  published,  may  perform  the 
double  office  of  petition  and  notice  under 
the  statute,  where  there  is  nothing  in 
the  statute  forbidding  such  double  func- 
tion. Fogg  v.  Perris  Irr.  Dist.,  154  Cal. 
209,  97  Pac.  31G    (1908). 

2.  Boundaries. 
a.  Generally. 
The  various  statutes  providing  for  the 
organization  of  irrigation  districts  pro- 
vide that  the  petition  for  such  organiza- 
tion shall  set  forth  and  particularly 
describe  the  boundaries  of  the  proposed 
district.     Central  Irr.  Dist.  v.  De  Lappe, 


79  Cal.  351,  21  Pac.  825  (1889)  ;  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist. 
(Idaho,  May  26,  1909),  102  Pac.  904. 

Under  some  of  the  statutes  it  is  held 
that  this  provision  as  to  boundaries 
requires  a  description  by  metes  and 
bounds,  for  the  reason  that  the  "bound- 
aries" are  the  thing3  which  are  to  be 
described,  and  not  merely  the  district; 
but  that  a  description  by  metes  and 
bounds  which  would  be  sufficient  in  an 
ordinary  deed,  or  an  act  of  the  legis- 
lature creating  a  political  district  or 
municipal  corporation,  is  sufficient. 
Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825  (1S89);  In  re  Madera 
Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675, 
27  Am.  St.  Rep.  106,  14  L.  R.  A.  755, 
(1891);  Oregon  Short  Line  R.  Co.  v. 
Pioneer  Irr.  Dist.,  16  Idaho  578,  102 
Pac.   904    (1909). 

It  is  not  necessary  that  a  specific  and 
accurate  description  of  each  tract,  or 
legal  subdivision  of  land  within  the  dis- 
trict should  be  given  under  Idaho  Laws 
1899,  p.  408,  §  2,  as  amended  by  Laws 
1901,  p.  191,  §  1.  Oregon  Short  Line  R. 
Co.  v.  Pioneer  Irr.  Dist.,  16  Idaho  578, 
102  Pac.  904  (1909).  In  such 
description  plain  monuments  control 
courses  and  distances,  false  courses 
may  be  rejected  and  lines  may  be 
supplied  by  intendment;  parol  evidence  is 
admissible  to  aid  in  locating  the  course 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     27 

those  interested  upon  the  question  of  fact  whether  or  not  the  land  of 
any  owner  which  was  intended  to  be  included  would  be  benefited  by  the 
irrigation  proposed.  If  such  a  hearing  were  provided  for  by  the  act,  the 
decision  of  the  tribunal  thereby  created  would  be  sufficient.  Whether  it 
is  provided  for  will  be  discussed  when  we  come  to  the  question  of  the 
proper  construction  of  the  act  itself.  If  land  which  can,  to  a  certain 
extent,  be  beneficially  used  without  artificial  irrigation,  may  yet  be  so 
much  improved  by  it  that  it  will  be  thereby  and  for  its  original  use 
substantially  benefited,  and,  in  addition  to  the  former  use,  though  not 
in  exclusion  of  it,  if  it  can  then  be  put  to  other  and  more  remunerative 
uses,  we  think  it  erroneous  to  say  that  the  furnishing  of  artificial.,  irriga- 
tion to  that  kind  of  land  cannot  be,  in  a  legal  sense,  a  public  improve- 
ment, or  the  use  of  the  water  a  public  use.    Assuming,  for  the  purpose 


of  lines.  (Central  Irr.  Dist.  v.  De  Lappe, 
79  Cal.  351,  21  Pac.  825  —  1889)  ;  if  the 
landmarks  called  for  are  definite,  they 
will  be  sufficient  in  the  absence  of  evi- 
dence that  such  landmarks  cannot  be 
found  upon  the  ground.  Cullen  v.  Glen- 
dora  Water  Co.,  113  Cal.  503,  512,  45 
Pac.  822,  1047  (1896).  See  39  Pac. 
769  (1895).  Where  it  does  not  appear 
that  the  boundaries  as  set  forth  in  the 
petition  are  so  indefinite  that  the  dis- 
trict cannot  be  definitely  located,  or 
that  the  boundaries  as  set  forth  fail  to 
embrace  a  definite  and  distinct  territory 
the  board  to  which  the  petition  is  sub- 
mitted acquires  jurisdiction  therefrom  to 
authorize  an  organization  of  the  dis- 
trict. In  re  Madera  Irr.  Dist.,  92  Cal. 
296,  28  Pac.  272,  675,  27  Am.  St.  Rep. 
106,  14  L.  R.  A.  755    (1891). 

b.  Modification  of. 
The  board  to  which  the  petition  for 
the  organization  of  an  irrigation  dis- 
trict is  submitted  has  power,  upon  the 
final  hearing,  to  modify  the  boundaries 
of  the  district  so  as  to  exclude  lands 
therefrom  or  to  include  lands  therein  not 
included  by  the  petition,  where  proper 
application  has  been  made  therefor  by 
the  owner  of  such  land.  See  People  V. 
Hagar,  66  Cal.  59,  4  Pac.  951  (1884); 
People  ex  rel.  Bettner  v.  Riverside,  70 
Cal.  461  (1886).  But  a  proper  notice 
thereof  must  be  duly  given  to  the  parties 


to    be   affected    thereby.      Oregon    Short 
Line    R.    Co.    v.    Pioneer    Irr.    Dist.,    16 
Idaho   578,    102   Pac.   904    (1909).     But 
in  so  doing  the  board  may  not  exempt 
any   territory   described   in   the   petition 
which  is  susceptible  of  being  irrigated  by 
the  same  system  of  works  applicable,  to 
the  other   lands   in   the     district;      and" 
where  lands  have  been  excluded  by  the 
board,   such   exclusion   may  be  reviewed 
in  special   proceedings  to   determine  the 
validity  of  the  organization  of  the  dis- 
trict.     Ahem   v.   Board   of   Directors   of 
High   Line   Irr.   Dist.,   39   Colo.    409,   89 
Pac.    963     (1907).      And    the    action    of 
the   board    in   this    regard,    as   to    lands 
which  are  embraced  within  the  boundaries 
of  a  district  as  set  forth  in  the  petition 
or   modified    by    such    board,    which    are 
susceptible  of  irrigation,  is  final  so  far 
as   the   validity    of   the   organization   of 
the    district    is    concerned.      See    People 
v.  Hagar,  66  Cal.  59,  4  Pac.  951   (1884)  ; 
People  ex   rel.   Bettner  v.   Riverside,   70 
Cal.   461    (1886);    Modesto   Irr.   Dist.  v. 
Tregea,  88  Cal.  334,  26  Pac.  237   (1891). 
In    Idaho    and    Nebraska,    however,    the 
statute  makes  special  provisions  whereby 
lands  within  the  proposed  district  which 
are    susceptible    of    irrigation    may    be 
exempted   from   the   obligations   imposea 
on  landholders    by    the    organization    of 
the    district    in    those    cases    where    the 
exceptions   in   the   statutes   provided   ob- 


28 


Water  and  Mineral  Cases. 


[Idaho 


of  this  objection,  that  the  owner  of  these  lands  had  by  the  provisions  of 
the  act,  and  before  the  lands  were  finally  included  in  the  district,  an 
opportunity  to  be  heard  before  a  proper  tribunal  upon  the  question  of 
benefits,  we  are  of  opinion  that  the  decision  of  such  a  tribunal,  in  the 
absence  of  actual  fraud  and  bad  faith,  would  be,  so  far  as  this  court  is 
concerned,  conclusive  upon  that  question-" 

If  then  the  railroad  company  was  given  an  opportunity  to  be  heard 
in  accordance  with  the  provisions  of  the  statute  upon  the  question  of  in- 
cluding the  lands  of  the  company  within  the  district,  and  whether  such 
lands  were  benefited  by  reason  of  the  system  of  irrigation,  and  made 
no  objection  or  protest  thereto,  but  submitted  to  the  action  of  the  tribu- 
nal authorized  by  the  statute  to  determine  such  matter,  then,  as  said  by 
the  Supreme  Court  of  the  United  States,  in  the  absence  of  actual  fraud 


tain.  See  post  II,  C,  I,  and  3,  a,  c  and  d. 

3.     Signers. 

a.     Generally. 

A  petition  for  the  organization  of  an 
irrigation  district  under  the  Wright  Act 
is  not  sufficient  if  not  signed  by  fifty 
freeholders  owning  land  within  the  dis- 
trict, and  proceedings  for  confirmation  of 
the    organization    cannot   be   maintained 

(Directors  of  Fallbrook  Irr.  Dist.  v. 
Abila,  10G  Cal.  355,  39  Pac.  794—1895)  ; 
but  under  the  Washington  Statute  (Act 
1890,  1  Ballinger's  Ann.  Codes  and  Stats., 
§  4166),  providing  that  whenever  "fifty 
or  a  majority  of  the  holders  of  title  or 
of  evidence  of  title  to  lands  within  the 
proposed  district  susceptible  of  irriga- 
tion from  a  common  source  and  by  the 
same  system  of  works"  sign  a  petition 
requesting  the  organization  of  a  district, 
proceedings  may  be  had  for  the  organ- 
ization of  an  irrigation  district  under  the 
provisions  of  the  act,  where  said  petition 
is  signed  by  less  than  fifty  holders  of 
title  or  evidence  of  title,  but  who  con- 
stitute a  majority  of  the  landowners  of 
the  district,  this  will  constitute  sufficient 
signatures,  under  the  statute,  to  author- 
ize   the      organization      of    the    district 

(Rothchild  Bros.  v.  Rollinger,  32  Wash. 
307,  73  Pac.  367—1903)  ;  because  the 
intention  of  the  legislature  is  held  to 
have   been    that    fifty   signatures    should 


be  appended  to  the  petition  in  thickly 
settled  districts,  but  in  sparsely  settled 
territory,  a  majority  of  the  landowners 
within  the  proposed  district,  although 
such  majority  does  not  constitute  the 
number  of  fifty  persons,  should  be  suf- 
ficient to  give  the  board  jurisdiction  to 
organize  the  district.  Rothchild  Bros, 
v.  Rollinger,  32  Wash.  307,  73  Pac.  367 
(1903).  See  Board  of  Directors  of  Mid- 
dle Kittitas  Irr.  Dist.  v.  Peterson,  4 
Wash.  147,  29  Pac.  995  (1892);  State 
ex  rel.  Witherop  v.  Brown,  19  Wash. 
383,  53  Pac.  548  (1898);  Kincade  v. 
Witherop,  29  Wash.  10,  69  Pac.  399 
(1902).  See  post  III,  I,  1,  this  note.  It 
would  seem  that  in  California  it  is  not 
necessary  that  the  signatures  be  append- 
ed to  the  petition  if  they  are  filed  with 
the  petition  and  bond  required,  at  the 
same  time  the  petition  is  filed.  See 
Central  Trr.  Dist.  v.  Tie  Lappe,  79  Cal. 
351,   21    Pac.   825    (1889). 

b.      "Owners"    Construed. 

The  word  "owners,"  as  used  in  the 
Wright  Act  and  other  acts  regulating 
the  formation  of  irrigation  districts, 
requiring  that  the  petition  shall  be 
signed  by  the  "owners"  of  land  within 
the  district,  is  to  be  given  its  general 
and  unrestricted  meaning,  and  imports 
one  who  has  full  proprietorship  in  and 
dominion  over  the  property  (Directors 
of  Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal. 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.    29 

or  bad  faith  such  action  would  be  conclusive  upon  that  question.  Coun- 
sel for  respondent,  however,  argue  that  the  railroad  company  had  no 
notice  of  the  intention  to  include  its  lands  within  the  district  or  of  the 
hearing  to  assess  benefits,  for  the  reason  that  its  right  of  way  and  sta- 
tion grounds  were  not  described  in  the  petition  or  in  any  of  the  proceed- 
ings leading  up  to  and  including  the  time  the  assessment  of  benefits 
was  made.  A  reference,  however,  to  the  statute  (section  I,  Laws  1901, 
p.  191)  discloses  that  the  petition  for  the  organization  of  an  irrigation 
district  is  not  required  to  specifically  describe  each  tract  or  legal  subdi- 
vision within  the  proposed  district.  The  statute  only  requires  the  peti- 
tion to  describe  the  proposed  boundaries.  Neither  does  the  statute 
require  that  the  notice,  stating  the  time  of  the  meeting  at  which  the 
petition  will  be  presented,  nor  the  notice  of  the  time  of  the  hearing  of  the 


355,  39  Pac.  794—1895)  ;   and  only  per- 
sons who  are  bona  fide  holders  of  agri- 
cultural lands  are  qualified  to  sign  the 
petition  for  the  organization  of  the  dis- 
trict.    In  re  Central  Irr.  Dist.,  117  Cal. 
382,    397,    49    Pac.    354     (1897).      The 
Oregon   Irrigation    District    Law    (Laws 
1895,   p.    19)    requires   that  the  petition 
shall    be    signed    by    actual    settlers    on 
land    susceptible    of    irrigation    from    a 
common  source  through  the  same  system 
of  works.     Little  Walla  Walla  Irr.  Dist. 
v.  Preston,  46  Or.  5,  78  Pac.  982   (1904). 
c.     "Dummy"   Owners. 
In  a  case  where  the  required  number 
of  freeholders   within  the  district  could 
not  be  obtained  to  a  petition  for  organ- 
ization, and  resident  landowners  wishing 
to  form  the  district  conveyed  small  tracts 
of  their  land,  without  consideration,  to 
other  persons   so  as  to  qualify  them  to 
sign   the    petition   as   freeholders,   under 
an    arrangement   whereby    they   were   to 
take  the  title,  sign  the  petition  as  free- 
holders,   and    after   the   organization    of 
a   district   to    reconvey   the    lands, — this 
was  held  to  constitute  a  fraud  upon  the 
law,   and  that   a   decree   confirming  the 
organization    of    such    district    could    be 
set  aside  in  equity.    People  v.  Perris  Irr. 
Dist.,  142  Cal.  601,  76  Pac.  381    (1904). 
Such  a  procedure  constitutes  a  fraud  on 
the  board,     if     concealed     from   it,     or 
would  be  a  fraud  upon  the  law  and  the 


property  owners  of  the  district,  even  if 
disclosed  to  the  board,  and  where  shown 
to  a  court  on  proceedings  for  confirma- 
tion, it  would  be  sufficient  cause  for 
declaring  the  organization  of  the  district 
invalid.  People  v.  Perris  Irr.  Dist.,  142 
Cal.  601,  76  Pac.  381  (1904);  Fogg  v. 
Perris  Irr.  Dist.,  154  Cal.  209,  214,  97 
Pac.  316  (1908).  Such  fraud,  however, 
does  not  make  the  organization  of  the 
district  void,  but  voidable  only.  Fogg  v. 
Perris  Irr.  Dist.,  154  Cal.  209,  214,  97 
Pac.  316    (1908). 

d.  Owners  of  City  Lots. 
It  is  shown  elsewhere  in  this  note 
that  incorporated  towns  and  villages  may 
be  included  within  an  irrigation  district 
where  they  will  be  benefited  thereby 
(see  post  II,  C,  2,  e)  ;  and  that  the 
owners  of  small  residence  lots  in  such 
towns  and  villages  within  a  proposed  irri- 
gation district  are  "landowners"  within 
the  meaning  of  the  Wright  Act,  so  as  to 
make  them  qualified  signers  of  an 
original  petition  for  the  organization  of 
an  irrigation  district,  seems  to  have  been 
held  in  the  case  of  Directors  of  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237 ;  but  that  question  was  expressly  re- 
served and  not  decided  in  a  later  case, 
the  court  saying  that  the  case  of  Board  of 
Directors  of  Modesto  Irr.  Dist.  v.  Tre- 
gea, is  not  to  be  taken  as  an  absolute 
adjudication  on  the  point    (Directors  of 


30 


Water  and  Mineral  Cases. 


[Idaho 


same,  shall  contain  a  description  of  the  different  tracts  of  land  or  legal 
subdivisions  within  the  boundaries  of  the  proposed  district.  ^  The  notice 
therefore  given  to  the  railroad  company  was  the  same  notice  given  to 
every  other  landowner  within  such  proposed  district,  and,  as  held  by 
this  court  in  the  Knowles  Case,  was  sufficient  to  require  the  railroad 
company  to  appear,  and  in  case  of  failure  to  do  so  to  conclude  it  by  the 
action  of  the  commissioners  in  organizing  said  district.  See,  also, 
Eagleson  v.  Rubin,  16  Idaho  92,  100  Pac.  765. 

Section  11  of  the  act  under  consideration  requires  the  board  to  ex- 
amine all  tracts  and  legal  subdivisions  within  the  boundaries  of  the  dis- 
trict and  apportion  the  benefits  according  to  their  judgment.  This  pro- 
vision means  that  the  board  shall  examine  all  the  lands  within  the  district 
and  determine  the  benefit  to  each  particular  legal  subdivision  or  tract. 


Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal. 
355,  39  Pae.  794—1895)  ;  and  in  the  case 
of  In  re  Central  Irr.  Dist.  117  Cal.  382, 
49  Pac.  354  (1897),  it  is  expressly  held 
that  the  owners  of  such  lots  are  not  such 
owners  of  land  as  are  qualified  to  sign  a 
petition  for  the  organization  of  a  dis- 
trict within  the  meaning  of  the  Wright 
Act. 

e.  Tenants  in  Common. 
The  question  whether  or  not  a  tenant 
in  common  is  to  be  considered  as  an 
owner  of  land  within  the  provision  of 
the  Wright  Act  was  especially  reserved 
and  not  decided  by  the  Supreme  Court 
of  California,  the  court  saying,  however, 
iii.it  if  one  tenant  in  common  can  over- 
rule all  his  cotenants,  or  if  a  large  num- 
ber of  tenants  in  common  of  one  tract 
are  each  individually  qualified  signers 
of  an  original  petition  for  the  organiza- 
tion of  an  irrigation  district,  many  con- 
fliets  might  arise  under  which  much 
injury  would  come  to  the  landowners. 
Directors  of  Fallbrook  Irr.  Dist.  v.  Abila, 
106  Cal.  355,  39  Pac.  794  (1895).  See 
Mulligan  v.  Smith,  59  Cal.  206  (1881); 
Pfeiffer  v.  Regents  of  the  University,  74 
Cal.   156,   15  Pac.   622    (1887). 

f.      Married    Women. 
A    married   woman    in   whose   name   a 
deed  to  land  is  taken  in  a  purchase,  for 
a    money    consideration,    made    prior   to 


the  amendment  of  18S9  to  section  164 
of  the  California  Civil  Code,  in  the 
absence  of  evidence  to  show  that  the 
property  was  purchased  with  her  private 
funds,  is  not  a  competent  signer  of  an 
original  petition  for  the  organization  of 
an  irrigation  district.  Directors  of  Fall- 
brook Irr.  Dist.  v.  Abila,  106  Cal.  355, 
39  Pac.  794  (1S95). 

g.     Purchasers  of  Railroad  Lands. 

Where  a  proposed  irrigation  district 
embraces  within  the  boundaries  described 
public  lands  donated  to  a  railroad  com- 
pany, but  to  which  lands  no  patent  has 
yet  been  issued  by  the  government,  the 
question  whether  bona  fide  purchasers  of 
such  lands  from  the  railroad  company 
by  persons  who  are  citizens  of  the 
United  States  and  to  whom  deeds  have 
been  made  for  the  parcels  of  land  thus 
purchased,  are  "owners  of  land"  within 
the  meaning  of  the  Wright  Act,  was 
raised,  but  not  decided,  in  Cullen  v. 
Glendora  Water  Co.,  113  Cal.  503,  512, 
45  Pac.  822,  1047  (1896).  See  39  Pac. 
769  (1895). 

h.      Purchasers    of    School    Lands. 

A  purchaser  of  school  lands  from  the 
state  who  merely  holds  such  lands  on  a 
certificate  of  purchase  having  paid  but 
twenty  per  cent,  of  the  purchase  price  of 
the  lands  so  bought,  is  not  a  "freeholder 
owning  land"  within  a  proposed  irriga- 


1909]  Oregon  Shoet  Line  E.  Co.  v.  Pioxeee  Ieeigation  Dist.     31 

If  an  entire  legal  subdivision  be  equally  benefited,  then  all  that  is  neces- 
sary is  to  designate  the  benefit  to  the  legal  subdivision.  If,  however,  a 
portion  of  a  legal  subdivision  designated  as  a  tract  be  benefited  differently 
from  the  remainder  of  such  legal  subdivision,  then  the  board  is  required 
to  designate  the  benefit  of  the  particular  tract.  The  benefits  thus  fixed 
and  determined  by  the  board  are  laid  against  the  land  and  not  against 
each  individual  owner  thereof.  The  entire  proceeding  for  the  determina- 
tion of  benefits  is  a  proceeding  in  rem  against  the  land,  and  all  that 
the  statute  requires  is  that  the  board  shall  designate  the  benefit  to  the 
particular  legal  subdivisions  or  tracts  within  the  proposed  district.  The 
benefit  thus  determined  has  reference  to  the  land  and  not  to  the  owner- 
ship of  the  land.  It  is  fixed  and  determined  with  reference  to  the  land 
and  not  with  reference  to  the  quantity  or  description  of  the  land  owned 


tion  district,  within  the  meaning  of  the 
Wright  Act,  and  not  a  qualified  signer  of 
an  original  petition  for  the  organization 
of  an  irrigation  district.  Directors  of 
Fallbrook  Irr.  Dist,  v.  Abila,  106  Cal. 
355,  39  Pac.  794    (1895). 

4.      Bond. 
a.     Defective. 

Where  the  bond  required  by  statute  to 
be  filed  with  the  petition  for  the  organiza- 
tion of  an  irrigation  district  is  defective, 
the  board  of  supervisors  has  power  to 
allow  a  new  bond  to  be  filed,  and  may 
continue  the  hearing  of  the  petition  for 
that  purpose;  and  where  such  proceed- 
ings are  had,  and  a  new  bond  is  filed, 
the  new  bond  "accompanies  the  petition," 
within  the  meaning  of  the  statute.  Cen- 
tral Irr.  Dist.  v.  De  Lappe,  79  Cal.  351, 
21  Pac.  825    (1889). 

A  bond  accompanying  the  petition 
being  defective  in  form  is  not  for  that 
reason  invalid,  and  it  binds  those  who 
sign  it;  the  determination  of  the  suf- 
ficiency of  the  bond  rests  entirely  with 
the  board  of  supervisors,  and  their  deter- 
mination in  that  regard  is  conclusive. 
In  re  Madera  Irr.  Dist.,  92  Cal.  296,  28 
Pac.  272,  675,  27  Am.  St.  Rep.  106, 
14  L.  R.  A.  755   (1891). 

Where  the  organization  bond  recites 
as  petitioners  the  names  of  two  persons 
who   did   not   in   fact   sign   the  petition, 


but  whose  names  are  filed  with  the 
petition,  and  the  bond  is  filed  at  the 
same  time  the  petition  is  filed,  such 
reference  in  the  bond  is  sufficient  for 
the  purposes  of  identification.  Central 
Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21 
Pac.    825    (1889). 

b.  Conditions  of. 
The  bond  to  be  filed  with  the  petition 
for  the  organization  of  an  irrigation  dis- 
trict is  required  by  the  statute  to  be 
conditioned  to  pay  the  costs  "in  case 
said  organization  shall  not  be  affected"; 
but  this  requirement  is  satisfied  by  a 
bond  which  is  conditioned  that  it  should 
be  void  "if  said  obligors  or  bondsmen 
shall  pay  all  the  costs,"  etc.,  because 
such  a  bond  is  broader  than  that 
required  by  the  statute  and  includes 
all  the  requisite  provisions  of  the  statu- 
tory bond.  In  re  Central  Irr.  Dist.,  117 
Cal.    3S2,   397,   49    Pac.   354    (1S97). 

5.  Publication  of  Petition. 
The  statutes  regulating  the  formation 
of  irrigation  districts  generally  require 
that  the  petition  for  the  organization 
of  the  district  shall  be  published.  See 
Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825  (1889)  ;  Cullen  v.  Glen- 
dora  Water  Co.,  113  Cal.  503,  45  Pac. 
822,1047  (1896),  see  39  Pac.  769  (1895). 
Ahern  v.  Board  of  Directors  of  High 
Line   Irr.   Dist.,    39   Colo.   409,    89    Pao. 


32 


"Watee  and  Mineral  Cases. 


[Idaho 


by  any  particular  individual  or  corporation.  In  assessing  such  benefits 
the  record  shows  the  board  of  directors  made  the  following  order: 
"Order  assessing  benefits  and  costs  of  apportionment:  The  board  of 
directors  having  complied  with  the  law  requiring  an  examination  of 
each  tract  and  legal  subdivision  of  land  within  the  boundaries  of  the 
Pioneer  Irrigation  District,  for  the  purpose  of  determining  the  benefits 
to  be  derived  by  each  such  tract  and  legal  subdivision  from  the  pro- 
posed irrigation  system  and  being  fully  advised  in  the  premises,  do 
hereby  adjudge  and  order  that  the  benefits  accruing  to  all  lands  within 
the  district  from  such  irrigation  system  shall  be  equal,  and  the  apportion- 
ment of  costs  of  the  proposed  works  is  fixed  at  $6.00  per  acre  except 
as  hereinafter  otherwise  provided;  provided,  that  in  view  of  the  ad- 
ditional cost  of  distribution  grcAving  out  of  the  extra  expense   in  the 


963  ( 1907 )  ;  Portneuf  Irr.  Co.  Limited 
v.  Budge,  16  Idaho  116,  100  Pac.  1046 
(1909);  Knowles  v.  New  Sweden  Irr. 
Disk,  16  Idaho  217,  101  Pac.  81    (1908). 

In  the  publication  of  the  petition  un- 
der such  statutes,  slight  mistakes  in  the 
spelling  of  some  of  the  names  signed 
to  the  petition  for  the  formation  of  the 
district,  which  are  entirely  unimportant, 
and  defects  in  the  description  of  the  dis- 
trict, do  not  affect  the  validity  of  the  pro- 
ceedings. Central  Irr.  Dist.  v.  De  Lappe, 
79  Cal.  351,  21  Pac.  825   (1SS9). 

A  description  in  the  petition  for  the 
organization  of  the  district  will  be  suf- 
ficient if  the  landmarks  called  for  are 
definite,  in  the  absence  of  evidence  that 
such  landmarks  cannot  be  found  upon 
the  ground.  Cullen  v.  Glendora  Water 
Co.,  113  Cal.  503,  512,  45  Pac.  822, 
1047  (1896).  See  39  Pac.  769  (1895). 
See  ante  II,  B,  2,  this  note. 

6.  Notice, 
a.  Generally. 
In  the  organization  of  irrigation  dis- 
tricts, the  statutes  prescribe  the  pro- 
cedure which  must  be  complied  with, 
and  among  other  things  require  that 
notice  of  the  meeting  of  the  board  at 
which  the  petition  will  be  presented 
shall  be  given.  See  In  re  Central  Irr. 
Dist.,  117  Cal.  382,  49  Pac.  354  (1897). 
Ahem  v.  Board  of  Directors  of  High 
Line    Irr.    Dist.,    39    Colo.    409,    89    Pac. 


963  (1907);  Portneuf  Irr.  Co.  Limited 
v.  Budge,  16  Idaho  116,  100  Pac.  1046 
(1909).  This  requirement  is  mandatory, 
and  such  publication  is  an  essential 
prerequis;te  to  conferring  jurisdiction 
upon  the  board  of  supervisors  to  act 
in  the  matter,  and  such  notice  must  con- 
form to  the  statutory  requirements  (In 
re  Central  Irr.  Dist.,  117  Cal.  382,  49 
Pac.  354—1897)  ;  must  be  signed  by  the 
petitioners,  and  must  be  so  definite  a3 
not  to  be  misleading.  In  re  Central 
Irr.  Dist.,  117  Cal.  382,  49  Pac.  354 
(1S97);  Ahern  v.  Board  of  Directors 
of  High  Line  Irr.  Dist.,  39  Colo.  409, 
89   Pac.   963    (1907). 

The  notice  and  petition  for  the  forma- 
tion of  an  irrigation  district  may  be 
embodied  in  one  document.  There  is 
nothing  in  the  statute  forbidding  such 
a  combination  of  uses,  or  prescribing 
any  particular  form  either  for  the 
petition  or  the  notice.  Fogg  v.  Perris  Irr. 
Dist.,  154  Cal.  209,  213,  97  Pac.  316 
(1908). 

b.  By  Petitioners. 
The  notice  required  to  be  given  of 
the  meeting  of  the  board  at  which  the 
petition  for  the  organization  of  an  irri- 
gation district  is  to  be  presented  must 
be  given  and  published  by  the  petitioners 
themselves,  it  not  being  within  the  power 
of  the  board  of  supervisors  to  cause  the 
same  to   be   published;    and  such  notice 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.    33 


construction  of  laterals  and  so  on  and  the  advantage  derived  in  many- 
ways,  the  costs  assessed  against  the  lots  within  any  incorporated  town  or 
village  within  the  irrigation  district  is  hereby  fixed  at  the  rate  of  two 
dollars  per  lot  25  by  120  feet  or  fraction  thereof,  and  where  in  any 
portion  of  such  incorporated  town  or  village  the  lots  shall  be  of  a 
larger  size  the  costs  assessed  against  them  shall  be  in  the  same  propor- 
tion. It  is  ordered  that  the  secretary  be  and  hereby  is  authorized  to 
prepare  such  maps,  lists,  etc.,  as  required  by  law  to  submit  with  the 
plans  and  estimates  of  the  board  of  directors  to  the  state  engineer." 

In  accordance  with  the  direction  contained  in  this  order  a  map  was 
prepared  of  the  subdivisions  and  tracts  with  the  rate  per  acre  of  such 
apportionment  of  such  costs  entered  thereon,  and  certified  to  as  follows: 
"Pioneer  Irrigation  District,  Canyon  and  Ada  Counties,  Idaho.     This 


must  bear  upon  its  face  a  proper 
authentication  that  it  is  given  by  the 
petitioners;  a  mere  unsigned  and 
unauthenticated  notice  is  not  sufficient 
(In  re  Central  Irr.  Dist.,  117  Cal.  382, 
49  Pac.  354 — 1897;  Ahern  v.  Board  of 
Directors  of  High  Line  Irr.  Dist.,  39 
Colo.  409,  89  Pac.  963—1907),  and  the 
defect  cannot  be  cured  by  proof  of  actual 
knowledge  upon  the  part  of  those  to  be 
affected  by  the  proceedings.  In  re  Cen- 
tral Irr.  Dist.,  117  Cal.  382,  49  Pac. 
354   (1897). 

c.     Form  of. 

In  the  absence  of  any  statutory  pro- 
visions as  to  the  required  form  of  the 
notice  to  be  given  of  the  meeting  of  the 
board  of  supervisors  in  which  a  petition 
for  the  organization  of  an  irrigation  dis- 
trict will  be  presented,  a  publication  of 
the  petition  itself  will  be  sufficient  in 
the  absence  of  a  statute  forbidding  a 
combination  of  petition  and  notice. 
Fogg  v.  Perris  Irr.  Dist.,  154  Cal.  209, 
97  Pac.  316  (1908).  But  where  the 
statute  requires  the  notice  to  be  signed 
by  the  petitioners  equally  with  the 
petition,  a  published  notice  of  the  appli- 
cation to  the  board  of  county  commis- 
sioners under  the  Colorado  Statute 
(Laws  1901,  p.  199,  §  2)  setting  out 
the  petition  in  its  entirety,  was  held 
not  to  be  sufficient,  for  the  reason  that 
the  signatures  to  the  petition  did  not 
W.    &    M—  3 


constitute  signatures  to  the  notice  also. 
Ahern  v.  Board  of  Directors  of  High 
Line  Irr.  Dist.,  39  Colo.  409,  89  Pac. 
963  (1907).  And  a  notice  under  the 
Colorado  Statute  in  form  as  follows: 
"To  the  board  of  county  commissioners 
*  *  *  we  the  undersigned  will  pre- 
sent to  your  honorable  body,"  etc.,  was 
held  to  be  fatally  defective  in  that  it 
was  misleading.  Ahern  v.  Board  of 
Directors  of  High  Line  Irr.  Dist.,  39 
Colo.   409,   89   Pac.   963    (1907). 

d.      Description   of   District   in. 

The  description  of  an  irrigation 
district  in  the  notice  of  presentation 
of  petition  to  the  board  of  supervisors 
is  sufficient  if  the  landmarks  called  for 
are  definite,  in  the  absence  of  evidence 
that  such  landmarks  cannot  be  found 
upon  the  ground.  Cullen  v.  Glendora 
Water  Co.,  113  Cal.  503,  512,  45  Pac. 
822,1047  (1896).  See  39  Pac.  769  (1895). 
See  ante  II,  B,  2.  Such  notice  is  not 
required  to  contain  a  description  of  the 
different  tracts  or  legal  subdivisions 
within  the  boundaries  of  the  proposed 
district.  Oregon  Short  Line  R.  Co.  v. 
Pioneer  Irr.  Dist.,  16  Idaho  578,  102 
Pac.  904    (1909). 

e.    Service  of. 
All  the  proceedings  for  the  formation 
of   an   irrigation   district  being  proceed- 
ings in  rem   (Portneuf  Irr.  Co.  Limited 


34 


Watee  and  Mineeal  Cases. 


[Idaho 


certifies  that  this  map  has  been  prepared  under  the  direction  of  the  di- 
rectors of  the  Pioneer  Irrigation  District  and  shows  each  legal  subdi- 
vision and  tract  within  said  district,  and  the  rate  per  acre  apportioned 
or  assessed  against  the  same  entered  thereon,  excepting  the  platted  por- 
tion of  the  City  of  Caldwell  included  within  said  boundaries.  Irvin  Bas- 
set, President.  Attest:  R.  H.  Davis,  Secty."  The  board  also  caused 
to  'be  made  a  list  of  such  apportionment  or  distribution  containing  a 
description  of  each  subdivision  or  tract  of  land  of  such  district  with  the 
amount  and  rate  per  acre  of  such  apportionment  or  distribution  of  costs 
and  the  name  of  the  owner  thereof  which  is  as  follows:  "This  is  to 
certify  that  the  following  is  the  list  prepared  by  order  of  the  board  of  di- 
rectors of  the  Pioneer  Irrigation  District  containing  the  names  of  the 
owners  and  a  description  of  each  lot  and  fraction  of  lot  and  block  of  the 


v.  Budge,  16  Idaho  116,  100  Pac.  1046— 
1909,  see  post  III,  D,  this  note),  personal 
service  on  the  landowners  within  the  pro- 
posed irrigation  district  is  not  requisite 
to  give  jurisdiction;  constructive  service 
is  sufficient.  See  In  re  Central  Irr.  Dist., 
117  Cal.  382,  49  Pac.  354  (1897)  ;  Fogg 
v.  Perris  Irr.  Dist.,  154  Cal.  209,  97 
Pac.  316  (1908);  Portneuf  Irr.  Co. 
Limited  v.  Budge,  16  Idaho  116,  100  Pac. 
1046  (1909);  Knowles  v.  New  Sweden 
Irr.  Dist.,  16  Idaho  217,  101  Pac.  81 
(1908).     See  post  III,  F,  3,  this  note. 

7.  Presentation  at  "Regular  Meeting." 
Where  the  statute  under  which  an 
irrigation  district  is  formed  requires  the 
petition  to  be  presented  to  the  board 
"at  a  regular  meeting  thereof,"  a  peti- 
tion presented  at  a  meeting  of  the  board 
of  commissioners  held  as  and  for  a  regu- 
lar meeting,  under  an  ordinance  prescrib- 
ing the  meetings  of  the  board,  and  which 
is  the  only  "regular  meeting"  held  for 
a  long  period,  such  meeting  is  "a  regular 
meeting"  within  the  meaning  of  the 
statute,  and  proceedings  on  the  petition 
had  thereat  are  valid.  Central  Irr.  Dist. 
v.  De  Lappe,  79  Cal.  351,  21  Pac.  825 
(1889). 

8.     Election, 
a.     Generally. 

The  statutes  regulating  the  formation 
of    an    irrigation    district    provide    for 


such  organization  by  a  majority  vote  of 
electors  on  the  petition  of  the  landowners 
(Marra  v.  San  Jacinto  &  P.  V.  Irr.  Dist., 
131  Fed.  780—1904;  Merchants'  Nat. 
Bank  v.  Escondido  Irr.  Dist.,  144  Cal. 
329,  77  Pac.  937—1904;  Eothchild  v.  Eol- 
linger,  32  Wash.  307,  73  Pac.  367— 1903), 
and  some  of  the  statutes  require  the  elec- 
tors to  be  freeholders  within  the  proposed 
district.  Little  Walla  Walla  Irr.  Dist. 
v.  Preston,  46  Or.  5,  78  Pac.  982  (1904). 
Rothchild  v.  Rollinger,  32  Wash.  307,  73 
Pac.  367    (1903). 

b.  Proclamation  for. 

The  provisions  of  the  Wright  Act 
require  that  the  election  proclamation 
shall  be  published  "for  three  weeks  prior 
to  the  election."  This  statute  simply 
designates  the  period  of  publication,  not 
the  number  of  insertions  required  to  be 
made;  the  latter  is  left  to  the  reasonable 
discretion  of  the  board  of  supervisors. 
Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825    (1889). 

c.  Election  Precincts. 

Where  the  statute  requires  the  election 
precincts  to  be  established  thirty  days 
before  the  election  to  be  held  on  a  peti- 
tion for  the  organization  of  an  irriga- 
tion district,  it  is  sufficient  if  the 
precincts  are  established  by  the  proclama- 
tion calling  for  the  election,  which 
proclamation  is  required  to  be  published 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     35 


platted  portion  of  the  City  of  Caldwell,  included  within  the  boundaries  of 
the  irrigation  district  together  with  the  amount  apportioned  or  assessed 
against  each  lot  by  said  board  of  directors  in  proportion  to  the  benefits 
accruing  thereto."  Then  follows  a  description  of  the  town  lots  of  the 
platted  portion  of  the  City  of  Caldwell.  The  board  also  prepared  a  list 
of  other  property  and  certified  as  follows:  "This  is  to  certify  that  the 
following  is  the  list  prepared  under  the  direction  of  the  board  of  direc- 
tors of  the  Pioneer  Irrigation  District  containing  a  description  of  each 
tract  and  legal  subdivision  within  said  district,  and  the  name  of  the 
owner  thereof  with  the  amount  per  acre  apportioned  or  assessed  to  the 
same  by  the  said  board  of  directors  after  a  careful  examination  in  pro- 
portion to  the  benefits  accruing  thereto,  except  in  the  platted  portion  of 
the  City  of  Caldwell  included  within  said  district.  The  amount  as  appor- 
tioned or  assessed  against  each  acre  in  the  following  list  is  $6.00." 


for  three  weeks.  -Central  Irr.  Dist.,  v. 
De  Lappe,  79  Cal.  351,  21  Pac.  825 
(1889). 

d.  Keeping  Open  Polls. 
A  failure  to  keep  the  polls  open  for 
the  entire  time  prescribed  by  the  statute 
regulating  the  election  for  the  formation 
of  an  irrigation  district  will  be  deemed 
a  harmless  irregularity  where  the  elec- 
tion is  held  on  the  day  and  within  the 
hours  fixed  by  law,  and  a  majority  of 
the  electors  within  the  proposed  district 
entitled  to  a  vote,  vote  in  favor  of  the 
proposition  submitted.  Baltes  v.  Farm- 
ers'  Irr.   Dist.,   60   Neb.   310,   83   N.   W. 

53  (1900).     See  Piatt  v.  People,  29  111. 

54  (1862);  Cleland  v.  Porter,  74  111. 
76  (1874);  State  ex  rel.  De  Berry  v. 
Nicholson,  102  N.  C.  465,  9  S.  E.  545 
(1889);  Fry  v.  Booth,  19  Ohio  St.  25 
(1869);  Seymour  v.  Tacoma,  6  Wash. 
427,  33  Pac.  1059  (1893).  Otherwise,, 
as  to  an  election  to  confirm  a  bond  issue 
under  the  California  District  Irrigation 
Act.     See  VI,  D,   1,  this  note. 

e.      Canvassing    Votes    and    Declaring 
Result. 

To  make  the  election  valid  the  re- 
quirements of  the  law  providing  therefor 
must  be  pursued  and  substantially  com- 
plied with  in  all  respects.  Thus  the 
California  Law  requires  that  the  board 


of  directors  of  the  irrigation  district, 
on  the  canvass  of  the  returns,  shall 
declare  the  result  and  enter  it  of  record. 
A  failure  to  comply  with  this  require- 
ment makes  the  election  invalid;  the 
clerk  of  the  board,  of  his  own  motion, 
has  no  authority  to  make  a  record  of 
the  declared  result.  Directors  of  Fall- 
brook  Irr.  Dist.  v.  Abila,  106  Cal.  305, 
39  Pac.  793  (1895).  See  post  VI,  I,  1, 
this  note. 

The  Washington  Irrigation  District 
Law  (Act  1890,  1  Ballinger's  Ann.  Codes 
and  Stats.,  §  4166)  requires  a  submis- 
sion of  the  question  of  the  forming  of 
the  district  to  an  election  by  the 
qualified  electors  who  are  also  required 
to  be  freeholders,  and  provides  that  the 
board  of  county  commissioners  shall  can- 
vass the  returns,  "and  if  upon  such 
canvass  it  appears  that  at  least  two 
thirds  of  all  the  votes  cast  were  for  the 
irrigation  district,  the  board  shall  by  an 
order  entered  on  its  minute=  declare 
such  territory  organized  as  an  irrigation 
district."  Rothchild  v.  Rollinger.  32 
Wash.  307,  73  Pac.  367    (1903). 

C.     Territorial    Extent   of   District. 

1.      Decision   of   Board   of   Supervisors 

Conclusive. 

The  question  as  to  whether  the  land 
embraced  within  a  proposed  irrigation 
district      is      of      a     character      to      be 


36 


Watee  and  Mineral  Cases. 


[Idaho 


Then  follows  a  description  of.  the  legal  subdivisions  within  said  district, 
.with  the  name  of  the  owner  and  the  benefits  assessed  against  each  legal 
subdivision.  This  list,  however,  does  not  contain  the  name  of  the 
Oregon  Short  Line  Railroad  Company  or  a  description  of  its  right  of 
way  or  station  grounds  within  said  district,  but  it  does  contain  a  de- 
scription of  the  legal  subdivisions  across  which  such  right  of  way 
passes,  and  within  which  such  station  grounds  are  situated,  and  shows 
that  the  benefit  assessed  to  each  legal  subdivision  is  $6  per  acre.  The 
statute,  which  requires  the  board  to  prepare  a  list,  containing  a  complete 
description  of  each  subdivision  or  tract  of  land  within  the  district,  with 
the  amount  and  rate  per  acre  of  such  apportionment  or  distribution  of 
costs,  and  the  name  of  the  owner  thereof,  is  not  intended  to  require  the 
list  to  contain  an  abstract  of  title  to  the  land  nor  is  it  mandatory  as  to 
the  ownership  of  such  property. 


benefited  by  the  proposed  system  of 
irrigation  is  one  which  is  committed  to 
the  board  of  supervisors  on  an  applica- 
tion for  the  organization  of  the  district 
(Herring  v.  Modesto  Irr.  Dist.,  95  Fed. 
705 — 1899),  and  a  decision  of  the  board 
as  to  what  land  will  and  what  will  not 
be  benefited  by  irrigation  within  the 
district  is  conclusive  so  far  as  the 
organization  of  the  district  is  concerned. 
Modesto  Irr.  Dist.  v.  Tregea,  88  Cal.  334, 
26  Pac.  237  (1891).  See  People  v.  Hagar, 
66  Cal.  59,  4  Pac.  951  (1884);  People 
ex  rel.  Bettner  v.  Riverside,  70  Cal.  461 
(1886)  ;  Andrews  v.  Lillian  Irr.  Dist.,  66 
Neb.  461,  97  N.  W.  336  (1893);  State 
v.  Several  Parcels  of  Land,  80  Neb.  424, 
114  N.  W.  283  (1907);  Sowerwine  v. 
Central  Irr.  Dist.  (Neb.,  Dec.  23,  1909), 
124  N.  W.  118.  At  least  in  a  collateral 
proceeding.  Andrews  v.  Lillian  Irr. 
Dist.,  66  Neb.  461,  97  N.  W.  336  (1893)  ; 
Sowerwine  v.  Central  Irr.  Dist.  (Neb., 
December  23,  1909),  124  N.  W.  118.  This 
is  surely  the  case  in  the  absence  of  fraud, 
of  an  abuse  of  power,  or  of  objection  by 
any  landowner  whose  lands  are  either 
included  or  excluded ;  no  objection  can  be 
taken  to  the  action  of  the  board  in  this 
regard.  Cullen  v.  Glendora  Water  Co., 
113  Cal.  503,  512,  45  Pac.  822,  1047 
(1906).  See  39  Pac.  769  (1895).  See 
also   Central  Irr.  Dist.  v.  De  Lappe,  79 


Cal.  351,  21  Pac.  825  (1889);  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  20 
Pac.  237  (1891)  ;  In  re  Madera  Irr.  Dist., 
92  Cal.  296,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106,  14  L.  R.  A.  755  (1891); 
Oregon  Short  Line  R.  Co.  v.  Pioneer  Irr. 
Dist.,  16  Idaho  578,  102  Pac.  904  (1909). 
But  the  question  whether  or  not  the 
land  is  under  a  ditch  already  constructed 
of  sufficient  capacity  to  water  the  land, 
is  one  which  is  not  by  the  Statute  of 
Nebraska  left  to  the  adjudication  of  the 
county  board.  State  v.  Several  Parcels 
of  Land,  80  Neb.  424,  114  N.  W.  2S3 
(1907). 

Under  the  Idaho  Statute  (Laws  1899, 
p.  408)  this  is  true,  regardless  of  the 
question  as  to  what  particular  use  is 
being  made  of  any  particular  tract  or 
piece  of  land  at  the  time  the  district 
is  organized ;  and  in  determining  wheth- 
er lands  will  be  benefited  by  a  system 
of  irrigation  works,  the  board  of  county 
commissioners  is  not  limited  to  lands 
which  will  be  used  for  agricultural  pur- 
poses or  upon  which  water  will  be  bene- 
ficially used,  or  to  lands  devoted  to  any 
particular  use;  but  the  board  is  em- 
powered and  given  jurisdiction  to  deter- 
mine whether  all  lands  within  the  dis« 
trict  will  be  benefited  without  reference 
to  the  use  to  which  the  same  will  be 
put.    Oregon  Short  Line  R.  Co.  v.  Pioneer 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     37 


We  are  of  the  opinion  that  inasmuch  as  the  board  has  prepared  a  list 
containing  the  legal  subdivisions  across  which  the  right  of  way  of  the 
railroad  company  passes,  designating  the  rate  per  acre  apportioned  to 
such  legal  subdivision,  that  the  board  has  substantially  complied  with  the 
statute,  although  they  have  not  designated  in  such  list  the  description 
by  metes  and  bounds  of  the  right  of  way  of  the  railroad  company.  The 
list  thus  prepared  was  notice  to  the  railroad  company  that  the  benefits 
to  each  legal  subdivision,  across  which  the  right  of  way  passed,  were 
fixed  and  determined  at  $6  per  acre.  As  heretofore  stated,  the  proceeding 
fixing  benefits  is  a  proceeding  in  rem  against  the  land  and  not  against 
the  owner  thereof;  and  when  the  board  prepared  a  list  of  the  lands 
within  the  district,  and  fixed  the  benefits  accruing  to  each  legal  subdi- 
vision, the  benefits  thus  fixed  were  laid  against  the  land,  and  the  railroad 


Irr.   Dist.,   16   Idaho    578,   102  Pac.   904 
(1909). 

2.     Inclusion, 
a.    Generally. 

The  statute  providing  for  the  inclusion 
within  a  proposed  irrigation  district  of 
lands  susceptible  of  one  mode  of  irriga- 
tion from  a  common  source  and  by  the 
same  system  of  works,  and  which  will 
be  benefited  by  such  irrigation,  and  that 
no  land  shall  be  included  in  such  a 
district  except  such  as  may  be  benefited 
by  the  system  of  irrigation  to  be  estab- 
lished, means  that  the  land  must  be  such 
that  it  may  thereby  be  substantially  bene- 
fited. Fallbrook  Irr.  Dist.  v.  Bradley, 
164  U.  S.  112,  41  L.  Ed.  369,  17  Sup. 
Ct.  56  (1896).  Where  territory  has  not 
been  included  within  the  boundaries  of 
such  a  district  in  accordance  with  the 
laws  providing  for  the  formation  thereof 
and  taking  territory  into  the  district, 
the  district  has  no  power  or  jurisdiction 
to  assess  such  property.  Oregon  Short 
Line  R.  Co.  v.  Pioneer  Irr.  Dist.,  16 
Idaho  578,  102  Pac.  904  (1909).  See 
post  VII,  N,  1  and  2,  this  note. 

b.  Change  of  Boundaries. 
Where  an  irrigation  district  attempts 
to  change  the  boundaries  thereof  so  as  to 
include  other  territory,  but  fails  to  give 
the  notice  required  by  the  statute  of  the 
intention   of   such   district  to  so  change 


the  boundaries,  and  the  owners  of  lands 
attempted  to  be  taken  into  such  district 
by  such  change  of  boundaries  not  being 
given  notice  of  the  change,  and  the 
inclusion  of  their  lands  within  the 
district,  are  not  prevented  from  challeng- 
ing the  legality  of  the  change  until  they 
have  had  their  day  in  court.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho  578,  102  Pac.  904  (1909).  See 
ante  II,  B,  2,  a,  and  b,  this  note. 

c.      Assessment    of    Benefits. 

(1)      Idaho  Act. 

The  Idaho  Statute  requires  the  board 
of  commissioners  to  assess  benefits 
against  each  legal  subdivision  or  tract 
within  the  proposed  district,  and  where 
less  than  a  legal  subdivision  or  tract  is 
benefited  in  a  different  degree  or  amount 
than  the  remainder  of  the  legal  subdi- 
vision or  tract,  the  board  is  required 
to  fix  and  determine  the  benefits  accru- 
ing to  such  particular  tract;  but  where 
an  entire  legal  subdivision  is  equally 
benefited  the  assessment  may  be  laid 
against  the  entire  subdivision,  thus  in- 
cluding the  smaller  or  fractional  parts 
thereof.  Oregon  Short  Line  R.  Co.  v. 
Pioneer  Irr.  Dist.,  16  Idaho  578,  102 
Pac.  904  (1909).  Any  one  dissatis- 
fied therewith  may  have  the  action  of 
the  board  reviewed  as  provided  by  the 
irrigation  act    (Idaho   Sess.  L.   1899,  p. 


38 


Water  and  Mineral  Cases. 


[Idaho 


company  was  thus  advised  that  the  benefits  to  each  legal  subdivision, 
across  which  its  right  of  way  passed,  were  fixed  and  determined  to  be 
$6  an  acre.  If,  then,  the  assessment  of  benefits  is  charged  against  the 
land  and  the  proceedings  are  in  rem  against  the  land,  the  owner's  name 
is  not  an  essential  part  of  the  description,  and  the  assessment  of  benefits 
made  against  the  land  is  a  substantial  compliance  with  the  statute,  and 
a  sufficient  notice  to  the  owner  of  the  benefits  charged  and  adjudged 
to  be  against  said  property.  Coolige  v.  Pierce  County,  28  Wash.  95,  68 
Pac.  391;  Woodward  v.  Taylor,  33  Wash.  1,  jt>  Pac-  7&5>  75  Pac-  646; 
Best  v.  Wohlford,  144  Cal.  733,  78  Pac.  293.  In  the  case  of  Co-operative, 
etc.,  Ass'n  v.  Green,  5  Idaho  660,  51  Pac.  770,  in  discussing  the  ques- 
tion of  taxation,  this  court  said:  "Substantial  compliance  with  the  re- 
quirements of  the  law  in  making  assessment  is  all  that  is  necessary.     If 


408 ) .  Portneuf  Irr.  Co.  Limited  v.  Budge, 
16  Idaho   116,   100  Pac.   1046.    (1909). 

(2)       Assessing    Tracts    and    Listing. 

The  Idaho  Law  requiring  the  assess- 
ment of  benefits  (Laws  1899,  p.  411, 
§  11,  as  amended  by  Laws  1901,  p.  194, 
§  2)  requires  the  board  to  examine  all 
tracts  and  legal  subdivisions  within  the 
boundaries  of  the  district,  and  apportion 
the  benefits  according  to  their  judgment; 
but  it  does  not  require  the  board,  in 
designating  these  benefits,  to  particularly 
and  specifically  describe  each  tract  or 
fractional  part  of  such  legal  subdivision 
according  to  the  separate  ownership 
thereof,  in  those  cases  where  the  benefits 
accruing  to  all  parts  of  such  legal 
subdivision  are  the  same;  and  if  it 
fails  to  list  the  lands  according  to  sepa- 
rate ownership,  but  lists  them  according 
to  each  legal  subdivision,  this  does  not 
Bhow  that  the  board  did  not  intend  to 
assess  benefits  to  all  the  lands  within 
the  legal  subdivision.  Oregon  Short  Line 
R.  Co.  v.  Pioneer  Irr.  Dist.,  16  Idaho 
578,  102  Pac.  904  (1909).  In  those 
cases,  however,  where  the  board  in  assess- 
ing benefits  determines  that  any  part 
or  tract  less  than  a  legal  subdivision 
will  be  benefited  differently  from  the 
remainder  or  other  part  of  the  tract, 
then  the  board  is  required  to  designate 
and  describe  the  benefits  of  such  particu- 


lar tract  or  fractional  part.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho    578,   102  Pac.  904    (1909). 

(3)     Railway  Right  of  Way,  Stations, 
etc. 

In  assessing  benefits  to  accrue  to 
lands  within  a  proposed  irrigation  dis- 
trict, the  question  whether  or  not  the 
right  of  way  and  station  grounds  of  a 
railroad  company  will  be  benefited  is 
committed  to  the  judgment  of  the  board 
of  county  commissioners,  and  when  this 
board  has  determined  that  such  lands 
will  be  benefited  and  includes  such  right 
of  way,  station  grounds,  etc.,  within  the 
district,  the  action  of  the  board  is  final 
and  conclusive  against  collateral  attack. 
The  mere  fact  that  at  the  time  the  lands 
are  being  used  for  right  of  way  and 
depot  purposes  is  not  a  reason  why 
such  land  will  not  be  benefited  by  a 
system  of  irrigation  works  controlled  by 
the  irrigation  district;  the  question  of 
benefit  is  to  be  determined  with  reference 
to  the  natural  state  and  condition  of  the 
land  and  not  with  reference  to  the  use 
to  which  the  land  is  put.  Oregon  Short 
Line  R.  Co.  v.  Pioneer  Irr.  Dist.,  16 
Idaho   578,  102  Pac.  904  (1909). 

Where  the  board  of  county  commission- 
ers in  preparing  a  list  of  the  lands 
against  which  benefits  are  laid,  desig- 
nates upon  such  list  the  legal  subdi- 
visions across  which  the  right  of  way  of 


1909]  Oeegon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist. 


39 


property  is  a  subject  of  taxation,  it  cannot  escape  through  some  tech- 
nical failure  of  the  officer  to  perform  his  duty,  unless  it  has  actually  misled 
the  party,  to  his  injury." 

So,  in  the  case  under  consideration,  the  board  having  determined  that 
all  the  land  within  the  district  was  benefited,  and  such  benefit  was  deter- 
mined to  be  $6  an  acre,  and  the  same  was  laid  against  each  legal  subdi- 
vision within  the  district  across  and  within  which  the  company's  property 
was  located,  the  company  should  not  be  allowed  to  escape  the  burden 
of  taxation  upon  the  sole  ground  that,  in  making  a  list  of  the  several 
tracts  of  land  within  the  district,  the  officers  of  said  district  failed  to 
designate  thereon  the  particular  and  accurate  description  of  the  com- 
pany's right  of  way  and  depot  grounds.  It  will  also  be  perceived  that 
the  owner  of  each  legal  subdivision  within  the  district  is   designated, 


a  railroad  company  passes,  and  designates 
the  rate  per  acre  apportioned  to  each 
legal  subdivision,  this  is  a  substantial 
compliance  with  the  statute,  and  is  not 
void  because  the  right  of  way  is  not 
particularly  and  separately  described, 
and  the  list  thus  prepared  is  notice  to 
the  railroad  company  of  the  ber.efitc 
assessed  against  each  legal  subdivision 
of  which  its  right  of  way  is  a  part, 
and  the  absence  of  objection  on  the  part 
of  the  company  on  account  of  a  defective 
description  or  want  of  description  at  the 
time  of  hearing  and  confirmation  of  the 
district,  the  railroad  is  concluded  from 
a  collateral  attack  upon  the  action  of 
the  commissioners.  Oregon  Short  Line 
R.  Co.  v.  Pioneer  Irr.  Dist.,  16  Idaho 
578,  102  Pac.  904    (1909). 

(4)    Constitutionality   of    Statute. 

The  fact  that  the  Idaho  Statute  makes 
no  provision  for  notice  to  the  landown- 
ers that  on  a  particular  day  an  assess- 
ment of  benefits  to  the  lands  within  the 
district  will  be  made,  does  not  render  it 
unconstitutional,  provision  being  made 
in  the  statute  for  notice  to  be  given  of 
the  proceedings  to  organize  such  district 
and  notice  of  the  hearing  for  the  con- 
firmation of  the  organization  and  pro- 
ceedings of  such  district,  at  which  hear- 
ing the  court  is  required  to  examine  all 
the  proceedings  involved  in  the  organ- 
ization of  a  district  including  the  assess- 


ment of  benefits.  Oregon  Short  Line  R. 
Co.  v.  Pioneer  Dist.,  16  Idaho  578,  102 
Pac.  904   (1909). 

d.    Public  Lands. 

The  fact  that  public  lands  which  have 
been  granted  to  a  railroad  company, 
but  not  yet  deeded  to  it,  and  which  have 
been  sold  by  the  railroad  company  to 
bona  fide  purchasers  who  are  citizens 
of  the  United  States,  before  the  organ- 
ization of  the  district,  does  not  make  the 
organization  invalid.  Modesto  Irr.  Dist. 
v.  Tregea,  88  Cal.  334,  26  Pac.  237 
(1891);  In  re  Madera  Irr.  Dist.,  92 
Cal.  296,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755  (1891); 
Cullen  v.  Glendora  Water  Co.,  113  Cal. 
503,  513,  45  Pac.  822,  1047  (1896).  Set 
39  Pac.  769   (1895). 

e.  City  or  Town. 
In  the  organization  of  an  irrigation 
district  all  lands  which  in  their  natural 
state  would  be  benefited  by  irrigation, 
and  are  susceptible  of  irrigation  by  one 
system  are  to  be  included  within  the 
district  regardless  of  the  question  as  to 
what  particular  use  is  being  made  of  any 
particular  tract  or  piece  of  land  at  the 
time  the  district  is  organized.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho  578,  102  Pac.  904  (1909). 
Hence  it  has  been  held  that  a  city  or  town 
may    rightfully    be    included    within    an 


40 


Water  and  Mineral  Cases. 


[Idaho 


although  the  owners  of  fractional  parts  thereof  are  not  designated.  So 
the  list  designates  the  legal  subdivisions  across  and  within  which  the 
company's  right  of  way  and  station  grounds  are  located.  The  fact  that 
the  list  designates  the  assessment  of  benefits  to  the  particular  legal  sub- 
division is,  in  our  judgment,  a  substantial  compliance  with  the  law;  and 
the  fact  that  the  list  fails  to  contain  the  name  of  the  true  owner  of  such 
legal  subdivision  or  fractional  part  thereof  does  not  render  void  the  action 
of  the  board  in  fixing  and  determining  the  question  of  benefits.  To 
permit  the  railroad  company  to  escape  its  share  of  the  burdens  imposed 
upon  said  district  by  such  improvement,  because  the  officers  in  making 
up  the  list  of  lands  and  fixing  the  benefits  failed  to  specifically  and 
accurately  describe  the  company's  right  of  way  and  station  grounds  and 
designate  the  railway  company  as  the  owner  thereof,  would  be  to  exact 
from  the  officials  of  such  district  a  strictness  in  official  acts  which,  in  our 


irrigation  district  in  those  cases  where 
it  is  determined  hy  the  board  that  the 
lands  comprising  a  city  or  town  will  be 
benefited  by  irrigation,  and  that  such 
inclusion  will  not  invalidate  the  organ- 
ization of  the  irrigation  district.  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26 
Pac.  237  (1891);  In  re  Madera  Irr. 
Dist.,  92  Cal.  296,  28  Pac.  272,  675,  27 
Am.  St.  Rep.  106,  14  L.  R.  A.  755  (1891). 
Nam  pa  &  M.  Irr.  Dist.  v.  Brose,  11 
Idaho  474,  83  Pac.  499  (1905).  And 
this  is  true  regardless  of  the  fact  that 
buildings  or  other  structures  have  been 
erected  upon  small  lots,  thereby  render- 
ing them  unfit  for  cultivation.  Modesto 
Irr.  Co.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237    (1891). 

f.  Waiver  of  Right. 
Under  the  Idaho  Irrigation  District 
Law  (Laws  1903,  p.  150)  a  landowner 
within  the  proposed  district  may,  with- 
out the  consent  of  the  district,  waive 
hi3  right  to  water  from  such  district 
in  those  cases  where  it  is  made  to  appear 
that  no  one  residing  within  the  district 
is  injured  or  prejudiced  thereby,  and  in 
such  a  case  no  part  of  the  bond  issue 
can  be  apportioned  to  his  land.  Nampa 
&  M.  Irr.  Dist.  v.  Brose,  11  Idaho  474, 
83  Pac.  499  (1905).  See  Portneuf  Irr. 
Co.  Limited  v.  Budge,  16  Idaho  116,  100 
Pac.  1046   (1909). 


3.     Exclusion. 
a.     Generally. 

The  California  Wright  Act  provides 
that  the  board  of  county  supervisors 
shall  exclude  from  the  district  any 
lands  which  will  not,  in  the  opinion  of 
the  board,  be  benefited  by  the  system 
of  irrigation  to  be  established ;  and  where 
lands  are  included  within  the  district 
after  an  opportunity  for  the  owners 
thereof  to  be  heard,  this  is  in  and  of 
itself  a  determination  that  the  lands  will 
be  benefited.  Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  369, 
17   Sup.  Ct.  56    (1896). 

The  matter  of  the  exclusion  of  land 
rests  entirely  in  the  discretion  of  the 
board  of  supervisors,  and  is  a  matter 
which  cannot  be  then  delegated  to  anoth- 
er. Thus,  where  the  board  of  county  com- 
missioners referred  requests  for  the  ex- 
clusion of  land  to  a  committee  of  the  peti- 
tioners who  had  in  charge  the  organiza- 
tion of  the  district,  and  thereafter  affirm- 
ed the  determination  of  such  committee 
without  investigation,  this  was  held  to  be 
an  abuse  of  the  power  conferred  upon  the 
board  of  county  commissioners  by  Colo- 
rado Laws  1901,  p.  199,  §  2.  Ahem  v. 
Board  of  Directors  of  High  Line  Irr. 
Dist.,  39  Colo.  409,    89  Pac.  963   (1907). 

In  Idaho  and  Nebraska  special  pro- 
visions   are   made    and    proceedings    pre- 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.    41 


judgment,  was  not  intended  by  the  statute.  In  the  case  of  Pioneer  Irr. 
Dist.  v.  Bradbury,  8  Idaho  310,  68  Pac.  295,  101  Am.  St.  Rep.  201,  this 
court  held:  "But  the  amendatory  act  clearly  provides  for  assessments 
to  be  made  according  to  the  benefits  accruing  to  each  tract  of  land  in 
such  district,  and  the  action  of  the  board  in  preparing  lists  of  all  real 
estate  in  their  district,  by  which  the  assessments  each  year  shall  be  made, 
may  be  contested  in  the  district  court,  on  the  ground  that  such  lists  are 
not  made  with  reference  to  the  benefits  accruing  to  each  tract  of  land." 
If,  then,  the  railway  company  was  dissatisfied  with  the  assessment 
of  benefits  or  the  list  made,  it  should  have  appeared  and  contested  the 
same  in  the  district  court,  and  having  failed  to  do  so  is  concluded  by  the 
judgment  of  the  district  court.  Counsel  for  respondent  however  con- 
tend that  this  court  erred  in  the  case  of  Pioneer  Irr.  Dist-  v.  Bradbury 


scribed  for  the  exclusion  of  lands  which 
are  already  under  a  ditch  carrying 
sufficient  water  for  irrigation  or  which 
are  by  their  nature  nonirrigable.  See 
post  II,  C,  3,  c  and  d. 

b.     After  Organization. 

After  the  organization  of  an  irriga- 
tion district,  the  exclusion  of  part  of  the 
lands  therefrom  does  not  destroy  its 
identity  as  an  irrigation  district;  and 
where  at  the  time  of  the  exclusion  the 
district  has  no  indebtedness,  and  no  in- 
terested party  objects,  there  is  no  basis 
for  a  claim  of  injury  or  of  the  violation 
of  any  constitutional  rights.  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237    (1891). 

The  Nebraska  Statute,  providing  that 
in  no  case  shall  lands  be  held  within  any 
irrigation  district  which  from  some  nat- 
ural cause  cannot  be  irrigated,  provides 
the  procedure  for  detaching  such  lands 
from  the  district  after  organization,  and 
also  provides  the  method  of  detaching 
lands  other  than  those  which  cannot 
from  some  natural  cause  be  irrigated, 
and  the  procedure  therein  prescribed  is 
exclusive.  Andrews  v.  Lillian  Irr.  Dist., 
66  Neb.  461,  97  N.  W.  336  (1893)  ;  Sow- 
erwine  v.  Central  Irr.  Dist.  (Neb.,  Dec. 
23,  1909),  124  N.  W.  118. 

c.     Land  Already  under  Ditch. 
By   provisions   of   the   Idaho   and   Ne- 
braska   Irrigation     District    Laws,     the 


owner  of  lands  already  having  ditches 
of  sufficient  capacity  to  water  said 
lands,  having  water  and  not  receiving 
any  benefits  from  the  organization  of  the 
district,  upon  proper  showing  being 
made,  is  entitled  to  have  his  lands  ex- 
cluded from  the  district  and  from  all 
liability  or  responsibility  for  assessments 
of  the  district  as  well  as  from  the  bene- 
fits and  protection  of  the  landowners  in 
such  districts.  Nampa  &  M.  Irr.  Dist. 
v.  Brose,  11  Idaho  474,  83  Pac.  499 
(1905);  Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  1Q0  Pac.  1046 
(1909);  State  v.  Several  Parcels  of 
Land,  80  Neb.  424,  114  N.  W.  283 
(1907). 

d.  Nonirrigable  Lands. 
Under  the  provisions  of  all  the  irriga- 
tion district  laws,  nonirrigable  lands,  or 
lands  which  from  their  nature  are  not 
susceptible  of  receiving  and  using  water 
from  the  irrigation  system  to  be  estab- 
lished, are  to  be  excluded  from  the  dis- 
trict, and  the  method  of  procedure  for 
such  exclusion  is  provided  for.  Under 
the  Nebraska  Law  (Const.  Stats.  1903, 
c.  93a)  a  petition  for  the  exclusion  of 
lands  from  an  irrigation  district  alleg- 
ing the  fact  to  be  that  the  lands  are 
low,  wet,  and  swampy,  totally  unfit  for 
irrigation,  and  require  drainage  of  the 
water  naturally  standing  thereon  before 
the  same  can  be  tilled,  is  equivalent  to 


42 


Watee  and  Mineral  Cases. 


[Idaho 


in  holding  any  one  owning  land  in  such  district  may  appear  and  show 
that  the  cost  of  irrigation  works  of  such  district  has  not  been  apportioned 
or  distributed  in  proportion  to  the  benefits  accruing  to  any  tract  of  land 
in  said  district,  for  the  reason  that  at  the  final  hearing  the  court  is  only 
authorized  to  approve  or  disapprove  the  proceedings  either  in  whole 
or  in  part,  but  that  no  jurisdiction  is  given  to  revise  the  proceedings  or 
to  correct  any  errors  that  may  be  found  therein;  and  that  no  provision 
is  made  for  further  proceedings  in  case  the  court  disapproves  any  pro- 
ceeding already  had. 

Section  16  of  the  irrigation  act  (Laws  1899,  p.  417)  authorizes  the 
board  of  directors  of  the  irrigation  district  to  file  in  the  district  court 
a  petition,  praying  in  effect  that  the  proceedings  aforesaid  may  be 
examined,  approved,  and  confirmed  by  the  court.  Section  17  requires 
the  court  to  fix  a  time  for  the  hearing  and  for  notice  thereof. 


an  allegation  that  such  lands  cannot 
from  natural  cause  be  irrigated.  An- 
drews v.  Lillian  Irr.  Dist.,  66  Neb.  461, 
97  N.  W.  336  (1893).  It  is  held,  how- 
ever, that  equity  will  not  interpose  to 
separate  nonirrigable  lands  from  an  ir- 
rigation district  unless  it  be  shown  that 
the  plaintiff  has  sought  to  avail  him- 
self of  the  procedure  established  by  the 
Irrigation  District  Law,  providing  for 
effecting  such  separation.  Andrews  v. 
Lillian  Irr.  Dist.,  66  Neb.  461,  97  N.  W. 
336    (1893). 

D.  Watering  Lands  Outside  of  District 
An  irrigation  company  or  district  can- 
not be  compelled  to  furnish  water  to  put 
upon  lands  outside  of  the  irrigation  dis- 
trict; and  where  a  company  or  district 
does  consent  to  furnish  surplus  water  for 
the  purpose  of  watering  lands  outside 
of  the  district,  no  indefeasible  right  ex- 
ists to  the  use  of  such  water,  if  thereby 
secured,  and  the  district  or  company 
may  discontinue  the  service  whenever 
the  needs  of  landowners  within  the  dis- 
trict require  the  water.  See  post  VIII, 
B,  2,  this  note. 

The  fact  that  an  irrigation  district 
does  furnish  water  for  use  on  lands  out- 
side of  the  district  will  not  affect  either 
the  validity  of  the  organization  of  the 
district  (Settlers'  Irr.  Dist.  v.  Settlers' 
Canal  Co.,  14  Idaho  504,  94  Pac.  829— 


1908),  or  the  validity  of  a  bond  issue  of 
the  district.     See  post  VI,  P,  this  note. 

E.      Costs    and     Expenses. 

The  Irrigation  Law  of  California, 
known  as  the  Wright  Act,  is  evidently 
framed  upon  the  theory  and  with  the 
intention  on  the  part  of  the  legislature 
that  the  affairs  of  the  district  shall  be 
conducted  upon  a  ready-money  basis,  and 
not  upon  credit.  Hughson  v.  Crane,  115 
Cal.  404,  47  Pac.  120  (1896).  The  board 
of  directors  are  empowered  to  levy  an 
assessment  to  create  a  fund  out  of 
which  to  pay  current  and  incidental 
expenses,  including  the  salaries  of  offi- 
cers.    See  post  VII,  G,  this  note. 

Under  section  24  of  the  Nebraska  Ir- 
rigation Act  (Sess.  Laws  1895,  c.  70) 
all  expenses  incurred  for  the  construc- 
tion of  the  irrigation  works  are  to  be 
paid  wholly  out  of  the  construction  fund, 
and  no  indebtedness  or  liability  against 
the  district  for  labor  performed  in  the 
work  of  construction  can  be  incurred  by 
the  board  of  directors  where  no  con- 
struction fund  has  been  created  out  of 
which  such  indebtedness  may  be  paid. 
Lincoln  &  Dawson  County  Irr.  Dist.  v. 
McNeal,  60  Neb.  621,  83  N.  W.  847 
(1900). 

Under  the  Oregon  Irrigation  District 
Law  (Laws  1895,  p.  19)  the  cost  and 
expenses   of    purchasing    and    acquiring 


1909]  Oregon  Shoet  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     43 


Section  18  provides:  "Any  person  interested  in  said  district,  or  in 
the  issue  or  sale  of  said  bonds,  may  demur  to  or  answer  said  petition." 

Section  19  provides  that:  "Upon  the  hearing  of  such  special  proceed- 
ing, the  court  shall  have  power  and  jurisdiction  to  examine  and  deter- 
mine the  legality  and  validity  of,  and  approve  and  confirm  each  and  all 
of  the  proceedings  for  the  organization  of  said  district  under  the  pro- 
visions of  the  said  act,  from  and  including  the  petition  for  the  organiza- 
tion of  the  district,  and  all  other  proceedings  which  may  affect  the 
legality  or  validity  of  said  bonds,  and  the  order  for  the  sale,  and  the 
sale  thereof.  The  court,  in  inquiring  into  the  regularity,  legality  or  cor- 
rectness of  said  proceedings,  must  disregard  any  error,  irregularity,  or 
omission  which  does  not  affect  the  substantial  rights  of  the  parties  to 
said  special  proceeding;  and  it  may  approve  and  confirm  such  proceed- 


property  and  constructing  the  works  and 
improvements  are  fully  provided  for. 
Little  Walla  Walla  Irr.  Dist.  v.  Preston, 
46  Or.  5,  78  Pac.  982    (1904). 

As  to  payment  of  salaries  of  officers 
and  other  operating  expenses,  see  post  V, 
F,  1  and  2,  this  note. 

Under  the  Washington  Irrigation  Dis- 
trict Laws  (Laws  1895,  p.  143),  war- 
rants issued  by  county  commissioners 
for  construction  of  ditches  for  agricul- 
tural, sanitary,  and  domestic  purposes 
are  to  be  paid,  in  the  order  of  their 
issue,  out  of  the  "ditch  fund"  raised  by 
special  assessment  provided  for  by  the 
Act.  State  ex  rel.  Rush  v.  St.  John,  30 
Wash.  630,  71  Pac.  192  (1903).  Such 
warrants  issued  are  payable  in  full  in 
order  of  issue,  regardless  of  the  short- 
age of  funds  to  pay  all,  and  they  draw 
interest  from  date  of  presentation.  State 
ex  rel.  Rush  v.  St.  John,  30  Wash.  630, 
71   Pac.    192    (1903). 

III.  Confirmation  Proceedings. 
A.  In  General. 
The  proceeding  to  confirm  an  irri- 
gation district  is  not  the  same  as  a  pro- 
ceeding for  the  organization  thereof. 
People  v.  Perris  Irr.  Dist.,  142  Cal.  601, 
76  Pac.   381    (1904). 

The  California  Confirmation  Act  of 
March  16,  1889,  is  separate  and  distinct 
from  the  irrigation  district  law  known 
as   the   Wright   Act    (see   I,    E,    2,   this 


note),  and  provides  for  the  examination, 
approval,  and  confirmation  of  the  pro- 
ceedings for  the  organization  of  the  dis- 
trict, and  for  the  issue  of  bonds  and 
the  sale  of  bonds  issued  under  the 
Wright  Act  (Stats.  1889,  p.  12).  Crall 
v.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797  (1890);  Modesto  Irr.  Dist,  v.  Tre- 
gea,  88  Cal.  334,  26  Pac.  237  (1891), 
affirmed  in  164  U.  S.  179,  41  L.  Ed.  395, 
17  Sup.  Ct.  52  (1896);  In  re  Madera 
Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675, 
27  Am.  St.  Rep.  100,  14  L.  R.  A.  755 
(1891);  Fallbrook  Irr.  Dist.  v.  Abila, 
106  Cal.  355,  39  Pac.  794  (1895)  ;  Cul- 
len  v.  Glendora  Water  Co.,  113  Cal.  503, 
45  Pac.  822,  1047  (1896),  see  39  Pac. 
769  (1895)  ;  In  re  Central  Irr.  Dist.,  117 
Cal.  382,  49  Pac.  354   (1897). 

B.      Constitutionality. 

The  California  Confirmation  Act  of 
March  16,  1889,  regarding  proceedings 
for  confirmation  of  organization  and  is- 
suance of  bonds  by  irrigation  districts, 
empowering  the  superior  court  to  hear 
and  determine  what  will  be  the  rights 
of  parties  interested  in  the  bonds  in  ad- 
vance of  any  controversy  as  to  such 
rights,  is  not  unconstitutional  because 
of  such  power  conferred.  Cullen  v.  Glen- 
dora Water  Co.,  113  Cal.  503,  512,  45 
Pac.  822,  1047  (1896),  see  39  Pac.  769 
(1895). 


44 


"Watee  and  Mineral  Cases. 


[Idaho 


ings  in  part,  and  disapprove  and  declare  illegal  or  invalid  other  and 
subsequent  parts  of  the  proceedings." 

Section  n  of  the  act  of  March  18,  1901,  amending  the  law  of  1899, 
among  other  things  provides:  "Provided,  that  the  proceedings  of  said 
board  of  directors  in  making  such  apportionment  of  cost  and  the  said 
list  of  apportionment  shall  be  included,  with  other  features  of  the  organi- 
zation of  such  district  which  are  subject  to  judicial  examination  and 
confirmation  as  provided  in  sections  sixteen,  seventeen,  eighteen,  nine- 
teen and  twenty  of  this  act." 

It  will  thus  be  seen  that  this  statute  expressly  authorizes  the  court  at 
the  hearing  for  confirmation  to  examine  and  determine  the  legality  and 
validity  of  and  approve  and  confirm  each  and  all  of  the  proceedings  for 
the  organization  of  said  district  under  the  provisions  of  said  act,  from  and 


C.      Construction. 

The  California  Confirmation  Act  of 
March  16,  1889,  is  a  separate  and  in- 
dependent statute  amendatory  of  the 
Wright  Act,  no  part  of  which  provided 
special  proceedings  in  which  the  aid  of 
the  court  may  be  invoked  to  secure 
evidence  and  determine  as  to  the  due 
and  regular  organization  of  any  irriga- 
tion district  and  the  regularity  of  any 
bond  issue  by  it,  and  the  limitation  of 
two  years  provided  in  section  3  of  the 
Wright  Act  of  1891,  in  which  a  suit 
shall  be  commenced  or  defense  made 
attacking  the  validity  of  the  organiza- 
tion, does  not  apply  to  special  proceed- 
ings instituted  by  the  board  under  the 
Act  of  1889.  In  re  Central  Irr.  Dist., 
117  Cal.  382,  49  Pac.  354    (1897). 

D.     Nature  of  Proceedings. 

The  proceedings  for  the  confirmation 
of  the  legality  of  the  organization  of 
an  irrigation  district  and  of  the  issu- 
ance of  bonds  and  the  sale  of  bonds  by 
the    district    are    proceedings      in    rem. 

United  States. — Tregea  v.  Modesto  Jrr. 
Dist.,  164  U.  S.  179,  41  L.  Ed.  395,  17 
Sup.  Ct.  52  (1896)  ;  Perris  Irr.  Dist.  v. 
Thompson,   116   Fed.   832    (1902). 

California. — Crall  v.  Poso  Irr.  Dist.,  87 
Cal.  140,  20  Pac.  797  (1890);  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237     (1891);    In    re   Madera    Irr.    Dist., 


92  Cal.  296,  28  Pac.  272,  675.  27  Am.  St. 
Rep.  106,  14  L.  R.  A.  755  (1891)  ;  Rialto 
Irr.  Dist.  v.  Brandon,  103  Cal.  384,  37 
Pac.  484  (1894);  Directors  Fallbrook 
Irr.  Dist.  v.  Abila,  106  Cal.  365,  39 
Pac.  793  (1895);  Cullen  v.  Glendora 
Water  Co.,  113  Cal.  503,  45  Pac.  822, 
1047  (1896),  see  39  Pac.  769  (1895); 
People  v.  Linda  Vista  Irr.  Dist.,  128  Cal. 
477,  481,  61  Pac.  86  (1900);  People  ex 
rel.  Fogg  v.  Perris  Irr.  Dist.,  132  Cal. 
289,  64  Pac.  399  (1901)  ;  People  v.  Per- 
ris Irr.  Dist.,  142  Cal.  601,  67  Pac.  381 
(1904). 

Idaho. — Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046 
(1909);  Knowles  v.  New  Sweden  Irr. 
Dist.,  16  Idaho  217,  101  Pac.  81  (1908)  ; 
Oregon  Short  Line  R.  Co.  v.  Pioneer  Irr. 
Dist.,  16  Idaho  578,  102  Pac.  904  (1909). 
But  the  proceeding  may  be  attacked  for 
fraud  in  procuring  the  organization  or 
the  decree  of  confirmation.  See  post  III, 
J,  4,  this  note. 

Such  proceedings  are  authorized  for  the 
express  purpose  of  fixing  the  legal 
status  of  the  corporation  and  the  decree 
Tendered  thereat  concludes  the  whole 
world  upon  all  the  questions  involved, 
Perris  Irr.  Dist.  v.  Thompson,  116  Fed. 
832  (1902)  ;  Crall  v.  Poso  Irr.  Dist.,  87 
Cal.  140,  26  Pac.  797  (1890)  ;  Rialto  Irr. 
Dist.  v.  Brandon,  103  Cal.  384,  37  Pac. 
484    (1894);    Cullen  v.  Glendora  Water 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.    45 


including  the  petition  for  the  organization  of  the  district,  and  all  other 
proceedings  which  may  affect  the  legality  or  validity  of  said  bonds  and 
the  order  for  the  sale  and  the  sale  thereof,  including  the  proceedings 
of  the  board  of  directors  in  making  and  apportioning  the  costs  and  the 
list  of  such  apportionment.  The  list  of  apportionment  of  costs  thus 
referred  to  is  the  costs  required  to  be  apportioned  by  the  board  over  the 
tracts  and  subdivisions  of  land  within  the  district  according  to  the 
benefits  accruing  thereto,  as  provided  in  said  section.  It  will  thus  be  seen 
that  the  railroad  company  was  given  notice  of  the  hearing  for  con- 
firmation of  the  district,  given  an  opportunity  to  object  to  the  amount 
of  benefits  laid  against  its  lands  within  the  district,  and  given  the  same 
opportunity  given  to  every  other  landowner  of  such  hearing ;  thus  giving 
to  the  railway  company  its  day  in  court  at  which  the  railway  company 


Co.,  113  Cal.  503,  45  Pac.  822,  1047 
(1896),  see  39  Pac.  769  (1895);  People 
v.  Linda  Vista  Irr.  Dist.,  128  Cal.  477, 
61  Pac.  86  (1900)  ;  People  ex  rel.  Fogg 
v.  Perris  Irr.  Dist.,  132  Cal.  289,  64  Pac. 
399  (1901)  ;  People  v.  Perris  Irr.  Dist., 
142  Cal.  601,  67  Pac.  381  (1904);  and 
are  res  adjudwata  as  to  all  issues  before 
the  court.  Miller  v.  Perris  Irr.  Dist.,  85 
Fed.  693  (1898).  See  post  III,  J,  5,  this 
note. 

E.  Directors  May  Institute. 
An  action  for  the  confirmation  of  the 
proceedings  in  the  organization  of  the 
district  may  be  brought  by  the  board  of 
directors  of  the  district  on  proper  peti- 
tion therefor.  In  re  Central  Irr.  Dist., 
117  Cal.  382,  387,  49  Pac.  354  (1897)  ; 
Nampa  &  M.  Irr.  Dist.  v.  Brose,  11 
Idaho  474,  83  Pac.  499    (1905). 

Under  the  irrigation  district  laws 
the  determination  of  the  board  of  county 
supervisors,  or  other  board  to  which  the 
petition  for  the  organization  of  an  ir- 
rigation district  is  submitted,  as  to  the 
facts  respecting  the  validity  of  the  or- 
ganization of  the  district  is  not  conclu- 
sive, but  their  action  in  this  regard  is 
to  be  reviewed  by  special  proceedings  for 
confirmation.  In  re  Central  Irr.  Dist., 
117  Cal.  382,  387,  49  Pac.  354   (1897). 

F.     Notice  of. 
1.     Generally. 
The   notice   of  the  hearing  of  the  pe- 


tition for  confirmation  may  be  given  in 
the  same  manner  as  the  notice  of  the 
application  to  the  board  of  supervisors 
or  board  of  county  commissioners  for  the 
formation  of  an  irrigation  district.  See 
II,  B,  6,  e,  this  note. 

2.     Contents  of,  Description. 
The  description  of  the  proposed  irriga- 
tion district  by  boundaries,  as  required  in 
the  notice  of  proceedings  for  organization 
of  the  district   (II,  B,  6,  d,  this  note)   is 
not  required  in  the  notice  for  confirma- 
tion of  the  organization,  or  of  the  issu- 
ance of    bonds;     a    description    by    the 
name   of   the   district   is   held   sufficient, 
because  the  law   requires  the  board,   on 
declaring    the    organization    of    the    dis- 
trict, to  cause  a  copy  of  such  order,  duly 
certified,    to    be    immediately    filed    for 
record  in  the  county  in  which  the  land 
lies,   and   the   record   thus   made   consti- 
tutes constructive  notice  of  the  location 
and  boundary  lines  of  the  district  to  all 
inhabitants    and    other    interested    par- 
ties.    Fogg  v.  Perris  Irr.  Dist.,  154  Cal. 
209,   97   Pao.   316    (1908).     All   changes 
in  boundaries   of  the    proposed    district 
requiring    record,    in    the    same    manner 
as  in  the  fixing  of  the  original  bounda- 
ries, the  record  furnishes  to  all  parties 
interested    constructive    notice     of     such 
changes.     Fogg  v.  Perris  Irr.  Dist.,   154 
Cal.°209,  97  Pac.  316    (1908).     See  ante 
II,  B,  2,  b,  this  note. 


46 


"Water  and  Mineral  Cases. 


[Idaho 


was  given  an  opportunity  to  contest  the  question  as  to  whether  or  not 
the  benefits  assessed  to  its  property  were  out  of  proportion  to  the  bene- 
fits assessed  to  other  property,  as  well  as  the  sufficiency  of  the  list  thus 
prepared.  The  railway  company  having  made  no  appearance  at  such 
hearing  or  made  any  objection  to  the  apportionment  of  benefits  of  the  list 
made,  is  concluded  by  the  judgment  of  the  district  court  confirming 
said  district  and  said  assessment;  and  the  same  cannot  be  called  in  ques- 
tion or  attacked  in  this  collateral  proceeding. 

Counsel  for  respondent  also  argue  that  it  is  shown  by  the  pleadings 
that  the  officers  of  the  irrigation  district  were  acquainted  With  the 
character  and  extent  of  the  right  of  way  owned  by  the  plaintiff,  and  that 
the  law  also  made  it  their  duty  to  examine  each  tract  or  legal  subdivision 
critically,   and  by  so  doing  they  would  thus   have  become  acquainted 


3.  Personal  Service  of  Not  Necessary. 
The  various  irrigation  district  laws 
providing  for  service  of  notice  of  con- 
firmation by  publication,  and  posting 
and  personal  service  upon  the  land- 
owners of  the  district,  is  not  necessary 
in  order  to  give  the  court  jurisdiction 
and  power  to  render  a  judgment  of  con- 
firmation valid  and  binding  against  such 
property  owners  upon  all  questions  in- 
volved in  the  case,  such  service  by  pub- 
lication or  by  publication  and  posting 
being  sufficient.  Crall  v.  Poso  Irr.  Dist., 
87  Cal  140,  146,  26  Pac.  797  (1890);' 
In  re  Central  Irr.  Dist.,  117  Cal.  382, 
49  Pac.  354  (1897);  Fogg  v.  Perris  Irr. 
Dist.,  154  Cal.  209,  97  Pac.  316  (1908)  ; 
Ahern  v.  Board  of  Directors  of  High 
Line  Irr.  Dist.,  39  Colo.  409,  89  Pac. 
963  (1907);  Nampa  &  M.  Irr.  Dist. 
v.  Brose,  11  Idaho  474,  83  Pac.  499 
MOO.-));  Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046 
(1909);  Knowles  v.  New  Sweden  Irr. 
Dist.,  16  Idaho  217,  101  Pac.  81  (1908). 
See  Mayo  v.  Ah  Loy,  32  Cal.  477,  91 
Am.  Dec.  595  (18G7)  ;  People  v.  Doe,  36 
Cal.  220  (1868)  ;  Eitel  v.  Foote,  39  Cal. 
439  (1870).  See  ante  II,  B,  6,  e,  this 
note. 

G.     Jurisdiction. 
1.     Generally. 
The    California    Confirmatory   Act   of 
March     16,     1889,     confers     jurisdiction 


upon  the  court  only  to  "examine  and 
determine  the  legality  and  validity  of, 
and  approve  and  confirm"  the  proceed- 
ings under  the  statute  for  the  formation 
of  the  district;  and  any  other  or  further 
judgment  or  decree  entered  is  unauthor- 
ized. In  re  Madera  Irr.  Dist.,  92  Cal. 
296,  28  Pac.  272,  675,  27  Am.  St.  Rep. 
106,  14  L.  R.  A.  755   (1891). 

Jurisdiction  is  conferred  upon  the 
court  by  the  Confirmatory  Act  of  1889 
only  in  those  cases  where  the  bonds  of 
the  district  are  sold,  under  section  16 
of  the  Wright  Act,  to  raise  money  for 
investment  in  a  water  system,  and  does 
not  apply  to  section  12  of  the  Wright 
Act,  providing  for  bonds  to  purchase 
property  therein  authorized.  Leeman  v. 
Perris  Irr.  Dist.,  140  Cal.  540,  74  Pac. 
24   (1903). 

Under  the  Idaho  Irrigation  District 
Laws  (Laws  1899,  p.  408,  §  2,  as 
amended  by  Laws  1901,  p.  194,  §  11)  it 
is  provided  that  "the  proceedings  of 
said  board  of  directors  in  making  such 
apportionment  of  cost  and  the  said  list 
of  such  apportionment  shall  be  included, 
with  other  features  of  the  organization 
of  such  district  which  are  subject  to 
judicial  examination  and  confirmation, 
as  provided  in  sections  16-20,  of  this 
Act."  Oregon  Short  Line  R.  Co.  v.  Pio- 
neer Irr.  Dist.,  16  Idaho  578,  102  Pac. 
904   (1909). 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.    47 


with  the  particular  lands  owned  by  the  railway  company,  and  because 
the  particular  tract  owned  by  the  railway  company  is  not  designated 
upon  the  list,  that  the  board  of  directors  did  not  intend  to  assess  benefits 
against  the  same,  and  that  in  fact  no  assessment  was  made  or  intended 
to  be  made  against  such  right  of  way.  This  argument  of  counsel  over- 
looks the  fact  that  the  statute  does  not  intend  that  the  board  shall  lay 
the  assessment  of  benefits  to  the  several  tracts  of  land  according  to  each 
separate  ownership.  The  intention  of  the  statute  evidently  was  to  re- 
quire the  board  to  lay  the  assessment  of  benefits  against  each  legal  sub- 
division within  said  district,  and  where  less  than  a  legal  subdivision 
was  benefited  in  a  different  degree  or  amount  than  the  entire  legal  sub- 
division, then  the  board  is  required  by  the  statute  to  fix  and  determine 
the  benefit  accruing  to  such  particular  tract;  but  where  the  entire  legal 


Jurisdiction  of  court  to  make  adjudi- 
cation confirming  the  organization  of 
an  irrigation  district  is  not  affected  by 
fraud  in  creating  dummy  or  fictitious 
freeholders  for  the  purpose  of  signing 
the  petition  for  formation  of  the  dis- 
trict, where  the  fraud  does  not  appear 
upon  the  face  of  the  record.  Fogg  v. 
Perris  Irr.  Dist.,  154  Cal.  209,  214,  97 
Pac.  316  (1908).  See  ante  II,  B,  3,  c, 
this    note. 

2.      Questions    Reviewable. 

On  notice  of  application  to  confirm  the 
issue  of  bonds,  based  on  the  petition  re- 
quired by  the  statute,  an  inquiry  into 
the  validity  of  the  original  organization 
of  the  district  is  necessarily  involved, 
and  the  confirmatory  decree  may  adjudge 
the  validity  of  the  organization  of  the 
district  without  special  prayer  in  that 
behalf.  Fogg  v.  Perris  Irr.  Dist.,  154 
Cal.  209,  217,  97  Pac.  316  (1908).  See 
post  VI,  D,  5  and  7,  this  note.  And 
the  court  is  empowered  and  given  juris- 
diction, upon  the  hearing,  to  examine 
and  determine  the  legality  and  validity 
of,  and  to  approve  and  confirm,  each  and 
all  of  the  steps  in  the  proceedings  for 
the  organization  of  the  district  and  the 
issuance  and  sale  of  bonds,  from  and  in- 
cluding the  petition  for  the  organization. 
Fogg  v.  Perris  Irr.  Dist.,  154  Cal.  209, 
217,  97  Pac.  316  (1908);  Nampa  &  M. 
Irr.  Dist.  v.  Brose,  11  Idaho  474,  83  Pac. 


499  (1905);  Oregon  Short  Line  R.  Co. 
v.  Pioneer  Irr.  Dist.,  16  Idaho  578,  102 
Pac.  904  (1909);  Board  of  Directors  of 
Alfalfa  Irr.  Dist.  v.  Collins,  46  Neb.  411, 
64  N.  W.  1086  (1895).  And  in  Idaho 
the  court  may  review  and  approve  the 
apportionment  of  costs  and  assessment  of 
benefits,  and  the  lists  thereof.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho  578,  102  Pac.  904  (1909). 

3.    Illegal   Bond   Issue. 

It  has  been  said  that  a  decree  of  the 
court  confirming  void  bonds,  not  issued 
nor  sold  under  the  terms  of  the  Wright 
Act,  and  not  within  the  Confirmation 
Act  of  March  16,  1889,  is  void  for  want 
of  jurisdiction  of  the  subject-matter. 
Leeman  v.  Perris  Irr.  Dist.,  140  Cal.  540, 
74  Pac.  24  (1903).  In  the  case 
of  proceedings  for  the  confirmation 
of  a  district  illegally  organized,  where 
the  bonds  thereof  have  been  issued,  some 
of  which  have  been  sold  to  bona  fide 
holders,  the  rights  of  such  holders  will 
not  be  determined  in  such  action  for  the 
reason  that  such  rights  can  be  deter- 
mined only  in  a  proper  action  to  which 
they  are  made  parties.  In  re  Central 
Irr.  Dist.,  117  Cal.  382,  49  Pac.  354 
(1897). 

H.      Errors,    etc.,    Disregarded. 
In   a   proceeding  for   the  confirmation 
of   an  irrigation   district   formed    under 


48 


Water  and  Mineral  Cases. 


[Idaho 


subdivision  is  benefited  equally,  then  the  board  may  lay  such  assessment 
against  the  legal  subdivision  as  such,  and  such  action  includes  all  parts 
thereof;  and  the  mere  fact  that  the  board  have  failed  to  designate  the 
true  owner  of  a  portion  of  such  legal  subdivision  will  not  affect  the 
legality  of  the  assessment  made,  where  it  is  clearly  shown  that  it  was  the 
intention  and  purpose,  and  the  board  in  fact  did  assess  the  benefits 
equally  to  all  parts  of  such  tract.  The  railroad  company  knew  what 
property  it  owned;  it  knew  the  legal  subdivisions  over  which  its  right 
of  way  passed  and  knew  the  benefits  assessed  to  such  legal  subdivisions, 
and  was  advised  by  the  list  prepared  of  such  fact,  just  as  effectively  as 
though  the  right  of  way  had  been  described  by  metes  and  bounds. 

In  this  connection  counsel  for  respondent  also  argue  that  inasmuch  as 
the  district  made  no  effort  to  collect  any  taxes  upon  the  plaintiff's  right 


the  Idaho  Irrigation  Laws  (Laws  1903, 
p.  150),  the  court  must  disregard  any 
error,  irregularity  or  omission  which 
does  not  affect  the  substantial  rights  of 
the  parties  to  such  proceedings.  Nampa 
&  M.  Irr.  Dist.  v.  Brose,  11  Idaho  474, 
83  Pac.  499   (1905). 

I.     Issues. 
1.     Generally. 

In  an  action  for  the  confirmation  ot 
an  irrigation  district  or  the  issuance 
and  sale  of  bonds  thereby,  any  person 
interested  in  the  district  may  appear 
and  resist  the  application.  Board  of 
Directors  of  Alfalfa  Irr.  Dist.  v.  Col- 
lins, 46  Neb.  411,  64  N.  W.  1086  (1895). 

Where  proceedings  for  the  confirma- 
tion of  the  organization  of  an  irrigation 
district  are  contested  by  answer,  it  is 
necessary  for  the  directors  of  the  dis- 
trict to  prove  that  a  petition  was  pre- 
sented to  the  board  of  supervisors 
signed  by  fifty,  or  a  majority,  of  the 
freeholders  owning  land  within  the  dis- 
trict; the  proof  of  such  petition  cannot 
be  made  by  recitals  in  the  record  of  the 
board  of  supervisors,  and  the  petition 
itself  cannot  be  properly  received  in  evi- 
dence without  proof  of  its  execution  and 
that  the  signers  thereof  were  freeholders 
of  the  district.  In  re  Madera  Irr.  Dist., 
92  Cal.  296,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106,  14  L.  R.  A.  755  (1891). 
See  ante  II,  B,  3,  a,  this  note. 


2.      Defense    of    Fraud. 

The  defense  of  fraudulent  organiza- 
tion being  set  up  to  confirmation  pro- 
ceedings, the  fact  that  the  statute  of 
limitations  is  available  to  the  district  as 
a  defense  (see  post  IV,  F,  this  note) 
does  not  prevent  the  issue  from  being 
shown  on  the  merits.  People  v.  Perris 
Irr.  Dist.,  142  Cal.  601,  76  Pac.  381 
(1904). 

3.    Burden  of  Proof. 

In  an  action  for  the  confirmation  of 
the  organization  of  an  irrigation  district 
and  of  the  issuance  and  sale  of  bonds 
thereby,  the  corporation  is  the  actor  and 
has  the  burden  of  proof  to  establish  the 
issues.  In  re  Madera  Irr.  Dist.,  92  Cal. 
296,  330,  339,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106,  14  L.  R.  A.  755  (1891); 
Directors  of  Fallbrook  Irr.  Dist.  v. 
Abila,  106  Cal.  365,  39  Pac.  793  (1895). 
As  to  burden  of  proof  in  action  to  con- 
firm a  bond  issue,  see  post  VI,  D,  6,  this 
note.  And  where  an  issue  is  made 
touching  the  qualifications  of  the  sign- 
ers of  the  petition,  the  burden  is  upon 
the  board  of  directors  to  prove  the 
qualifications  of  the  signers,  the  de- 
cision of  the  board  of  county  commis- 
sioners that  in  their  judgment  they  were 
such,  is  not  sufficient  proof.  Ahern  v. 
Board  of  Directors  of  High  Line  Irr. 
Dist.,  39  Colo.  409,  89  Pac.  963   (1907). 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     49 


of  way  for  the  years  1902,  1903,  and  1904,  that  this  clearly  indicates  that 
the  board  did  not  consider  such  property  subject  to  assessment.  The  law, 
however,  determines  the  duty  of  the  respondent's  property  to  contribute 
its  share  of  the  taxes  of  said  district;  and  the  fact  that  the  officials  of 
such  district  did  not  attempt  to  collect  taxes  against  such  property  during 
any  one  or  more  years,  would  not  relieve  such  property  of  its  share  of  tax- 
ation or  its  liability  to  be  assessed  according  to  law  within  said  district- 
We  are  unable  to  discover  any  reason,  either  in  law  or  equity,  why  the 
respondent's  property  should  be  relieved  from  its  liability  to  taxation 
for  the  benefit  of  said  district  from  the  mere  fact  that  the  officials  of 
said  district  failed  to  list  and  assess  such  property  for  any  particular 
year.  The  liability  of  the  respondent's  property  for  taxation  is  fixed 
by  law  and  not  by  the  acts  of  the  officials  in  listing  and  assessing  such 


J.  Decree  of  Confirmation. 
1.  Generally. 
The  decrees  of  the  state  court  having 
jurisdiction,  approving  the  organization 
of  an  irrigation  district,  are  conclusive 
against  any  attack  upon  the  validity  of 
the  organization.  Miller  v.  Perris  Irr. 
Dist.,  85  Fed.  693  (1898)  ;  Crall  v.  Poso 
Irr.  Dist.,  87  Cal.  140,  26  Pac.  797 
(1890);  Rialto  Irr.  Dist.  v.  Brandon, 
103  Cal.  384,  37  Pac.  484  (1894).  See 
also  In  re  Central  Irr.  Dist.,  117  Cal. 
382,  49  Pac.  354  (1897).  And  the  de- 
cisions of  the  state  court  are  binding 
upon  the  federal  courts.  Miller  v.  Per- 
ns Irr.  Dist.,  85  Fed.  693  (1898).  See 
ante  III,  D,  this  note. 

2.  Collateral  Attack. 
A  judgment  and  decree  confirming  the 
organization  of  an  irrigation  district, 
etc.,  cannot  be  assailed  collaterally  in 
quo  warranto  proceedings  or  otherwise. 
People  ex  rel.  Fogg  v.  Perris  Irr.  Dist., 
132  Cal.  289,  64  Pac.  399  ( 1901 )  ;  Port- 
neuf  Irr.  Co.  Limited  v.  Budge,  16  Idaho 
116,  100  Pac.  1046  (1909).  See  post  IV, 
D  and  E,  this  note. 

3.  Bond  Issue. 
Decree  confirming  proceeding  for  sale 
of  bonds,  made  in  pursuance  of  the  stat- 
ute, confirming  the  original  proceedings 
for  the  formation  of  the  district,  and 
subsequent  proceedings  changing  the 
W.  &  M.— 4 


boundaries  and  approving  bond  sales, 
made  after  a  first  invalid  decree  confirm- 
ing proceedings  of  the  district  up  to  an 
order  for  the  sale  of  certain  bonds,  will 
protect  the  district  and  the  bondholders 
against  any  attack  upon  the  validity  of 
the  district  organization  or  the  issuance 
of  bonds,  and  will  render  harmless  any 
error  of  the  trial  court  in  holding  the 
first  decree  invalid.  Fogg  v.  Perris  Irr. 
Dist.,  154  Cal.  209,  217,  97  Pac.  316 
(1908).  See  People  v.  Linda  Vista  Irr. 
Dist.,  128  Cal.  477,  480,  61  Pac.  86 
(1900). 

Such  adjudication  determining  the 
validity  of  the  proceedings  is  a  valid 
plea  in  bar  to  an  action  seeking  to  re- 
strain the  sale  of  bonds  of  the  district, 
brought  by  the  party  constructively 
served  by  publication  in  the  proceedings 
in  rem,  and  no  alleged  defects  in  the 
organization  can  be  reviewed  in  the  in- 
junction proceedings.  Crall  v.  Poso  Irr. 
Dist.,  87   Cal.   140,  26  Pac.  797    (1890). 

4.  Obtained  by  Fraud. 
A  decree  of  confirmation  procured  by 
fraud  upon  the  court, — e.  g.,  by  means 
of  a  false  affidavit,  which  stated  that 
notice  of  the  hearing  requisite  to  con- 
ferring jurisdiction  had  been  actually 
given  as  required  by  law — may  be  set 
aside  by  a  court  of  equity.  People  v. 
Perris  Irr.  Dist.,  142  Cal.  601,  76  Pac 
381    (1904).     See   Lapham   v.   Campbell, 


50 


Water  and  Mineral  Cases. 


[Idaho 


property  although  the  negligence  of  the  officers  may  prevent  the  collec 
tion  of  such  tax.  Certainly  the  railroad  company  cannot  complain  if 
the  district  failed  to  assess  its  property  for  the  years  1902,  1903,  and 
1904.  Such  failure  did  not  in  any  way  injure  the  railway  company  but 
was  clearly  to  its  benefit ;  and  it  cannot  be  allowed  to  complain  of  future 
legal  assessments  because  of  such  failure.  But  as  we  understand  the 
contention  of  counsel  for  respondent,  it  is  that  the  failure  to  assess  such 
property  for  the  years  1902,  1903,  and  1904  clearly  indicates  that  the 
district  did  not  intend  to  make  assessments  against  such  property,  and 
that  such  failure  to  assess  indicates  that  no  benefits  were  laid  against 
the  respondent's  property.  This  argument,  however,  overlooks  the  fact 
that  the  law  determines  what  property  shall  be  subject  to  tax  in  such 
district,  and  commits  only  to  the  board  of  directors  the  duty  of  determin- 


61  Cal.  296  (1882);  Dunlap  v.  Steere, 
92  Cal.  347,  28  Pae.  563,  27  Am.  St.  Rep. 
143  (1891);  Curtis  v.  Schell,  129  Cal. 
208,  61  Pac.  591,  79  Am.  St.  Rep.  107 
(1900);  People  v.  Perris  Irr.  Dist.,  142 
Cal.  601,  76  Pac.  381  (1904).  See  notes 
54  Am.  St.  Rep.  245,  27  Am.  St.  Rep. 
143. 

5.  Res  Adjudicata. 
A  judgment  and  decree  in  favor  of  the 
regularity  and  validity  of  the  organiza- 
tion of  an  irrigation  district  or  of  the 
issue  of  bonds  thereof  in  respect  to  speci- 
fied objections  made  thereto  is  res  adju- 
dicata as  to  the  things  determined  in 
such  former  suit  within  the  issues  pre- 
sented to  the  court  (see  ante  III,  D, 
this  note),  but  not  in  respect  to  objec 
tions  not  presented  to  the  court  in  the 
former  action.  In  re  Central  Irr.  Dist., 
117  Cal.  382,  387,  49  Pac.  354  (1897). 
See  ante  III,  D,  this  note. 

K.      New    Trial. 

Under  the  provisions  of  section  4  of  the 
California  Wright  Act,  providing  that 
in  proceedings  to  confirm  the  organiza- 
tion and  bonds  of  an  irrigation  district, 
a  motion  for  a  new  trial  must  be  made 
upon  the  minutes  of  the  court,  is  invalid 
because,  as  special  legislation,  it  contra- 
venes Const.,  art.  4,  §  25,  subd.  3. 
Cullen  v.  Glendora  Water  Co.,  113  Cal. 
503,  512,  45  Pac.  822,  1047  (1896).  See 
39  Pac.  769    (1895). 


A  new  trial  may  be  granted  as  to  a 
specified  issue,  and  denied  as  to  other 
issues  in  proceedings  for  the  confirma- 
tion of  the  organization  of  an  irriga- 
tion district  and  of  the  issuance  and 
sale  of  bonds.  Directors  of  Fallbrook 
Irr.  Dist.  v.  Abila,  106  Cal.  365,  39 
Pac.  793   (1895). 

L.      Bight    of    Appeal. 

Under  the  provisions  of  the  California 
Confirmation  Act  (Stats.  1889,  p.  212), 
an  appeal  from  a  judgment  validating 
the  organization  of  an  irrigation  district 
may  be  taken  within  ten  days  after 
entry  of  the  judgment,  and  no  notice  is 
required  to  be  given  of  the  entry  of  the 
judgment  in  order  to  set  the  time  run- 
ning within  which  an  appeal  may  be 
taken.  Palmdale  Irr.  Dist.  v.  Rathke,  91 
Cal.  538,  27  Pac.  783    (1891). 

Under  the  Idaho  Irrigation  District 
Laws,  any  one  dissatisfied  with  the  judg- 
ment of  confirmation  of  an  irrigation 
district  has  the  right  of  appeal  to  the 
supreme  court.  Portneuf  Irr.  Co.  Lim- 
ited v.  Budge,  16  Idaho  116,  100  Pae. 
1046    (1909). 

M.      Action    to    Set    Aside. 

A  judgment  and  decree  confirming  the 
validity  and  regularity  of  the  organiza- 
tion of  an  irrigation  district  and  the 
issue  of  bonds  thereof  cannot  be  attacked 
collaterally  in  quo  warranto  proceedinga 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.    51 

ing  the  benefits  and  carrying  out  the  clerical  provisions  as  to  the  method 
of  assessment.  So,  under  the  view  we  take  of  this  case,  it  can  make  no 
difference  whether  the  directors  intended  to  assess  such  property  or  not. 
The  law  made  it  their  duty  to  assess  all  property  in  the  district  accord- 
ing to  benefits  fixed  by  them  under  the  provisions  of  the  law. 

We  are  clearly  of  the  opinion  that  under  the  statute  the  assessment 
of  benefits  to  lands  within  an  irrigation  district  is  strictly  a  proceeding  in 
rem,  and  that  the  object  and  purpose  of  the  statute  is  to  have  determined 
upon  an  equitable  basis,  the  benefits  accruing  to  the  lands  within  said 
district  as  a  basis  for  levying  future  assessments  for  maintaining  said 
district;  and  this  without  reference  to  the  ownership  of  such  land,  and 
that  if  in  preparing  such  list  it  appears  that  the  board  have  laid  the 
benefits  to  all  the  legal  subdivisions  within  said  district,  then  the  mere 


or  otherwise  (see  ante  III,  J,  2,  this 
note)  ;  but  an  action  on  behalf  of  the 
people  may  be  brought  to  set  aside  such 
judgment  and  confirmation  of  the  or- 
ganization of  an  irrigation  district  on 
the  ground  of  fraud.  Such  action,  when 
brought,  is  not  governed  by  the  limita- 
tions in  sections  338  and  343  of  the 
California  Code  of  Civil  Procedure,  but 
by  section  3  of  the  Wright  Act,  as 
amended  by  Act  of  March  20,  1891,  pro- 
viding that  no  action  can  be  commenced 
or  maintained,  or  defense  made  affecting 
the  validity  of  the  organization  of  an 
irrigation  district  unless  the  same  shall 
have  been  commenced  or  made  within 
two  years  after  the  making  of  the  entry 
of  said  order.  People  v.  Perris  Irr.  Dist.,* 
142  Cal.  601,  76  Pac.  381    (1904). 

IV.     Attack  on  District,  Bonds,  etc. 
A.      In    General. 

Under  the  California  Irrigation  Dis- 
trict Laws,  the  regularity  of  the  organ- 
ization of  an  irrigation  district  is 
attackable  only  by  proceedings  under 
the  Act  of  1889,  supplementary  to  the 
Wright  Act.  Miller  v.  Perris  Irr.  Dist., 
85  Fed.  693,  701  (1898)  ;  In  re  Central 
Irr.  Distv  117  Cal.  382,  387,  49  Pac. 
354  (1897).  The  decree  of  confirmation 
is  nothing  more  than  evidence  of  the 
validity  of  the  organization,  and  is  con- 
clusive evidence  so  long  as  it  stands  un- 
impeached.     People  v.  Linda  Vista   Irr. 


Dist.,  128  Cal.  447,  61  Pac.  86  (1900); 
People  ex  rel.  Fogg  v.  Perris  Irr.  Dist., 
132  Cal.  289,  292,  64  Pac.  399  (1901); 
People  v.  Perris  Irr.  Dist.,  142  Cal.  601, 
76  Pac.  381  (1904).  But  it  is  an  adju- 
dication only,  is  no  part  of  the  pro- 
ceedings for  the  organization,  and  an 
attack  upon  the  decree  is  not  an  attack 
upon  the  validity  of  the  organization. 
People  v.  Perris  Irr.  Dist.,  142  Cal.  601, 
76  Pac.  381  (1904).  The  decree  of  the 
state  court  in  this  regard  is  binding 
upon  the  federal  courts.  Miller  v.  Per- 
ris Irr.  Dist.,  85  Fed.  693  (1898). 
See  ante  III,  D,  this  note. 

B.  By    District. 

In  those  cases  where  an  irrigation 
district  has  been  illegally  organized  and 
as  a  de  facto  irrigation  district  has  in- 
curred obligations,  the  illegality  of  the 
organization  of  the  district  cannot  be 
pleaded  by  the  district  itself  for  the 
purpose  of  avoiding  the  obligations  it 
has  incurred  while  acting  as  such  dis- 
trict. Herring  v.  Modesto  Irr.  Dist.,  95 
Fed.  705   (1899). 

C.  By  Individual. 

The  validity  of  the  organization  of  an 
irrigation  district,  reputed  to  be  such, 
and  acting  under  the  forms  of  law  re- 
lating to  and  governing  irrigation  dis- 
tricts, cannot  be  attacked  under  the 
Wright    Act    by    a    private    individual, 


52 


Water  and  Mineral  Cases. 


[Idaho 


fact  that  the  board  have  failed  to  designate  the  true  owner  of  such  legal 
subdivisions,  or  the  particular  description  of  fractional  parts  thereof, 
but  have  indicated  the  ownership  of  the  larger  tract  of  which  the  smaller 
may  be  a  part  and  laid  the  benefits  against  the  same,  the  proceedings 
of  the  board  in  determining  such  benefits  will  not  be  declared  or  held 
to  be  void.  The  fixing  and  determination  of  benefits  is  not  the  levying 
of  a  tax.  It  is  nothing  more  than  the  determination  of  values  as  a  basis 
for  future  assessments ;  and  it  seems  to  us  that,  in  determining  the  ques- 
tion of  value,  the  question  of  ownership  is  of  no  consequence.  The  rail- 
road company  were  advised  by  the  law  itself  that  the  board  of  directors 
must  examine  all  the  tracts  of  land  within  the  district  and  apportion  the 
costs  to  the  same,  and  were  advised  that  whatever  lands  they  might  own 
within  the  limits  of  such  district  would  be  subjected  to  the  proper  pro- 


either  directly  or  collaterally.  Miller  v. 
Perris  Irr.  Dist.,  85  Fed.  693  (1898); 
Miller  v.  Perris  Irr.  Dist.,  92  Fed.  263 
(1899);  Herring  v.  Modesto  Irr.  Dist., 
95  Fed.  705    (1899). 

D.      By    the    People — Quo    Warranto. 

The  decree  of  court  confirming  the  or- 
ganization of  an  irrigation  district  can- 
not be  assailed  in  quo  warranto  pro- 
ceedings brought  by  an  individual  or  a' 
public  officer  on  relation  of  the  People; 
the  decree  of  confirmation  of  the  dis- 
trict theretofore  issued  is  conclusive 
upon  all  parties  that  all  the  steps  neces- 
sary for  the  proper  organization  of  the 
district  had  been  taken.  People  v.  Linda 
Vista  Irr.  Dist.,  128  Cal.  477,  61  Pac. 
86  (1900)  ;  People  ex  rel.  Fogg  v.  Per- 
ris Irr.  Dist.,  132  Cal.  289,  64  Pac.  399 
(1901).     See  ante  III,  D,  this  note. 

Quo  warranto  proceedings  brought  in 
the  name  of  the  people,  upon  the  relation 
of  a  private  person,  to  determine  whether 
an  irrigation  district  has  a  valid  and 
legal  existence,  and  whether  its  pre- 
tended officers  are  acting  without  au- 
thority of  law,  is  subject  to  the  same 
rules  of  law  applicable  to  other  litiga- 
tions, and  no  injury  can  come  to  the 
state  by  the  dismissal  of  the  action,  for 
the  reason  that  if  the  defendant  cor- 
poration is  illegally  exercising  the  fran- 
chise, the  order  of  dismissal  will  not  be 
a  bar  to  another  action  because  a  wrong- 


ful exercise  of  a  franchise  is  a  continu- 
ously renewed  usurpation  on  which  a 
new  cause  of  action  arises  each  day. 
People  ex  rel.  Stone  v.  Jefferds,  126  Cal. 
296,  58  Pac.  704  (1899).  See  People  ex 
rel.  Attorney  General  v.  Stanford,  77 
Cal.  360,  18  Pac.  85,  19  Pac.  693  (1888). 
On  action  of  quo  warranto  against  an 
irrigation  district  charged  with  usurpa- 
tion and  unlawful  exercise  of  powers  and 
franchise,  a  bona  fide  purchaser  of  the 
bonds  who  has  been  permitted  to  inter- 
vene may  avail  himself  of  all  the  pro- 
cedure and  remedies  to  which  the  de- 
fendant district  was  entitled,  including 
an  appeal  from  the  judgment  rendered 
against  it.  People  ex  rel.  Fogg  v.  Perris 
Irr.  Dist.,  132  Cal.  289,  64  Pac.  399 
(1901). 

E.     Collateral    Attack. 

The  organization  of  an  irrigation  dis- 
trict under  the  provisions  of  the  Irriga- 
tion District  Law,  and  the  proceedings 
had  in  that  regard,  including  the  deter- 
mination of  the  county  board  as  to  those 
matters  which  are  by  the  statute  com- 
mitted to  its  consideration,  investiga- 
tion, and  determination,  and  the  judg- 
ment or  decree  of  confirmation  of  the 
organization  or  of  the  validity  of  a  bond 
issue  or  a  bond  sale,  cannot  be  collater- 
ally attacked. 

United  States. — Norton  v.  Shelby 
County,   118  U.   S.  425,  30  L.  Ed.   178, 


1909]  Oregon  Shoet  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     53 

portion  of  such  cost;  and  it  would  be  recognizing  a  technical  objection 
without  merit  to  say  that,  because  the  board  did  not  incorporate  within 
the  list  a  minute  description  of  the  company's  property  or  name  the 
owner  of  the  same,  the  company  has  not  been  advised  of  the  assessment 
of  benefits  to  such  land.    We  cannot  agree  with  this  contention. 

It  is  also  argued  by  counsel  for  respondent  that  section  n  of  the  act 
of  March  6,  1899,  as  amended  by  the  laws  of  1901  (Laws  1901,  p.  194), 
is  unconstitutional,  for  the  reason  that  such  section  makes  no  provision 
for  notice  to  the  landowner  of  the  time  when  the  assessment  of  benefits 
will  be  made.  While  it  is  true  the  statute  makes  no  provision  for  notice 
to  the  landowner  that  on  a  particular  day  the  board  of  directors  will 
proceed  to  assess  benefits  to  the  lands  of  said  district,  yet  the  statute 
did  notify  every  landowner  whose  lands  were  included  within  said  dis- 


6  Sup.  Ct.  1121  (1886);  Miller  v.  Per- 
ris Irr.  Dist.,  85  Fed.  693  (1898),  92 
Fed.  263  (1899);  Herring  v.  Modesto 
Irr.  Dist.,  95  Fed.  705   (1899). 

California. — Pec  pie  v.  La  Rue,  67  Cal. 
526,  8  Pac.  84  (1885);  Crall  v.  Poso 
Irr.  Dist.,  87  Colo.  140,  26  Pac.  797' 
(1890);  Rialto  Irr.  Dist.  v.  Brandon, 
103  Cal.  384,  37  Pae.  484  (1894)  ;  Quint 
v.  Hoffman,  103  Cal.  506,  37  Pac.  514 
(1894)  ;  People  v.  Linda  Vista  Irr.  Dist., 
128  Cal.  477,  61  Pac.  86  (1900)  ;  People 
ex  rel.  Fogg  v.  Perris  Irr.  Dist.,  132  Cal. 
289,  64  Pac.  399  (1901);  People  v.  Per- 
ris Irr.  Dist.,  142  Cal.  601,  76  Pac.  381 
(1904). 

Idaho. — Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046 
(1909). 

Nebraska. — State  v.  Several  Parcels  of 
Land,  80  Neb.  424,  114  N.  W.  283 
(1907). 

Washington. — Rothchild  v.  Rollinger, 
32  Wash.  307,  73  Pac.  367  (1903)  ;  Pur- 
din  v.  Washington  Nat.  Bldg.  Loan  & 
Inv.  Assoc,  41  Wash.  395,  83  Pac.  723 
(1906). 

F.  Limitation  of  Action. 
Under  the  California  Law  regulating 
irrigation  districts  (Cal.  Acts,  March  7, 
1887,  §  3,  as  amended  March  21,  1890), 
an  action  attacking  an  irrigation  district 
on  the  ground  of  fraud,  is  barred  if  not 
brought  within  two  years  after  the  or- 


der of  organization  is  made  and  entered 
by  the  board  of  county  supervisors  de- 
claring the  district  duly  organized 
(Miller  v.  Perris  Irr.  Dist.,  92  Fed.  263 
—1899)  ;  but  it  is  held  that  this  limita- 
tion on  the  attack  of  the  organization 
of  a  district  does  not  apply  to  suits  to 
annul  confirmation.  People  v.  Perris 
Irr.  Dist.,  142  Cal.  601,  76  Pac.  331 
(1904).  In  action  to  confirm,  where  the 
statute  of  limitations  is  available  to  the 
district  as  a  defense,  fraud  set  up  on 
opposition  to  confirmation  may  be  con- 
sidered, on  the  merits,  by  the  court.  See 
ante  III,  I,  2,  this  note. 

V.     Officers    of — Powers    and     Duties. 

A.  In  General. 
An  irrigation  district  being  a  quasi 
public  municipal  corporation  (see  I,  H, 
1,  this  note)  its  officers  are  public  of- 
ficers or  agents.  Fallbrook  Irr.  Dist.  v. 
Bradley,  164  U.  S.  112,  41  L.  Ed.  309, 
17  Sup.  Ct.  56  (1896);  Herring  v.  Mo- 
desto Irr.  Dist.,  95  Fed.  705  (1899);' 
In  re  Madera  Irr.  Dist.,  92  Cal.  296,  321, 
28  Pac.  272,  675,  27  Am.  St.  Rep.  106, 
14  L.  R.  A.  755  (1891)  ;  People  v.  Selma 
Irr.  Dist.,  98  Cal.  206,  208,  32  Pac.  1047 
(1893)  ;  Quint  v.  Hoffman,  103  Cal.  506, 
37  Pac.  514  (1894);  Perry  v.  Otay  Irr. 
Dist.,  127  Cal.  565,  60  Pac.  40  (1900); 
Board  of  Directors  of  Alfalfa  Irr.  Dist. 
v.  Collins,  46  Neb.  411,  64  N.  W.  1086 
(1895). 


54: 


Water  and  Mineral  Cases. 


[Idaho 


trict,  that  if  the  district  was  organized  such  lands  would  be  required  to 
bear  their  equal  share  of  the  expenses  of  said  district  and  the  system  of 
irrigation  maintained  therein;  and  the  law  also  notified  every  landowner 
that  the  amount  of  benefits  to  be  assessed  had  been  committed  to  the 
determination  of  the  board  of  directors  of  such  district,  and  that  such 
board  was  required  to  critically  examine  each  tract  or  legal  subdivision 
of  land  within  said  district  with  a  view  of  determining  the  benefits  which 
would  accrue  to  the  same.  The  law  gave  this  notice  to  each  landowner, 
when  the  notice  of  the  presentation  and  hearing  of  the  petition  was 
given,  and  our  attention  has  not  been  called  to  any  constitutional  pro- 
vision which  would  prevent  the  legislature  from  authorizing  the  board 
of  directors  of  an  irrigation  district  to  examine  and  determine  the  ques- 
tion of  benefits,  where  the  landowner  had  been  fully  advised  and  noti- 


In  all  irrigation  districts  formed  un- 
der the  various  statutory  proceedings 
regulating  the  manner  of  creating  irri- 
gation districts,  the  officers  thereof  have 
such  powers  and  duties  as  are  conferred 
by  the  respective  statutes  under  which 
the  district  is  formed.  Crippen  v.  X.  Y. 
Irr.  Ditch  Co.,  32  Colo.  447,  76  Pac. 
794  (1904)  ;  Pioneer  Irr.  Dist.  v.  Camp- 
bell, 10  Idaho  159,  77  Pac.  328  (1904)  ; 
Settlers'  Irr.  Dist.  v.  Settlers'  Canal  Co., 
14  Idaho  504,  94  Pac.  829  (1908)  ;  Little 
Walla  Walla  Irr.  Dist.  v.  Preston,  46 
Or.  5,  78  Pac.  982  (1904)  ;  Eyan  v.  Tut- 
ty,  13  Wyo.  122,  78  Pac.  661    (1904). 

B.  Board  of  Directors. 
1.  Generally. 
Irrigation  districts  being  quasi  public 
municipal  corporations,  and  the  officers 
thereof  being  public  officers  or  agents,  the 
board  of  directors  of  such  district  do  not 
occupy  positions  antagonistic  to  the  dis- 
trict; they  are  merely  the  agents,  and 
the  district  is  the  principal.  Tregea  v. 
Modesto  Irr.  Dist.,  164  U.  S.  179,  186,  41 
L.  Ed.  395,  398,  17  Sup.  Ct.  52  (1896). 

2.  Duties  and  Powers  of. 
a.  Generally. 
The  duties  and  powers  of  the  board  of 
directors  of  an  irrigation  district  are 
such  only  as  are  expressly  conferred  up- 
on the  board,  by  statute  or  are  impliedly 
necessary  in  carrying  out  the  main  pur- 
poses   of    the    statute    under    which    the 


district  is  organized.  Stimson  v.  Alles- 
andro  Irr.  Dist.,  135  Cal.  389,  67  Pac. 
496,  1034  (1902)  ;  Leeman  v.  Perris  Irr. 
Dist.,  140  Cal.  540,  74  Pac.  24  (1903). 

An  irrigation  district  being  a  munici- 
pal public  corporation,  persons  dealing 
with  the  board  of  directors  of  such  dis- 
trict are  charged  with  a  knowledge  of 
all  the  limitations  upon  the  powers  of 
the  officers  of  such  district  and  can  ac- 
quire any  right  of  action  under  written 
instruments  entered  into  in  disregard  of 
the  statutory  requirements.  Hughson  v. 
Crane,  115  Cal.  407,  47  Pac.  120   (1896). 

b.      Under    California    Laws — Election 
at   Large. 

Under  the  provisions  of  the  amend- 
ment of  1891  to  the  California  Wright 
Act,  notice  by  the  board  of  directors  for 
the  election  of  a  new  board  of  five  direc- 
tors by  the  district  at  large,  is  valid  and 
sufficient  without  dividing  the  irrigation 
district  into  five  supervisorial  districts 
for  the  purposes  of  such  election. 
Cullen  v.  Glendora  Water  Co.,  113  Cal. 
503.  512.  45  Pac.  822,  1047  (1896).  See 
39  Pac.  769   (1895). 

c.      Under    Nebraska    Laws. 

Under  the  Nebraska  Irrigation  District 
Laws  (Comp.  Laws  1903,  c.  993a)  the 
board  of  directors  of  an  irrigation  dis- 
trict may  acquire  by  purchase  or  con- 
demnation all  lands  necessary  for  the 
construction,  use,  maintenance,  repair, 
and  improvement  of  canals.     Andrews  v. 


1909]  Oregon  Shoet  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     55 

fied  of  the  organization  of  such  district,  and  the  fact  that  in  the  process 
and  development  of  organization  one  of  the  steps  was  the  determination 
of  the  amount  of  benefits  to  the  lands  in  said  district.  The  determination 
of  the  question  of  benefits  is  not  the  fixing  of  a  tax.  It  is  merely  an 
appraisement  and  a  fixing  of  values  of  the  lands  of  said  district  as  a  basis 
for  future  assessments;  and,  as  heretofore  held  in  this  opinion,  the  land- 
owner is  given  an  opportunity  to  contest  the  question  of  benefits  upon  the 
final  hearing  for  the  confirmation  of  said  district.  He  is  thus  given  full 
opportunity  for  his  day  in  court  upon  all  questions  involving  the  legality 
of  the  district  and  the  apportionment  of  the  costs  according  to  benefits, 
as  well  as  the  legality  and  validity  of  the  bonds. 

As  to  the  assessment  levied  for  the  year  1905,  the  record  in  this  case 
shows  the  following  order :    "A  correction  of  the  assessment  roll  of  the 


Lillian  Irr.  Dist.,  66  Neb.  461,  97  N.  W. 
336    (1893). 

And  under  the  Act  of  1895  (Laws  1895, 
c.  70,  §  13),  requiring  the  board  of 
directors  of  the  district,  as  soon  as 
practicable  after  its  organization,  to  de- 
termine the  amount  of  money  necessary 
to  be  raised,  and  to  call  a  special  elec- 
tion at  which  shall  be  submitted  the 
question  of  issuing  bonds  in  the  amount 
determined,  this  duty  of  the  board  should 
be  performed  at  once,  but  failure  to  act 
promptly  does  not  relieve  the  board 
from  its  continuing  obligation,  or  nullify 
the  action  of  the  electors  in  the  forma- 
tion of  the  district.  Baltes  v.  Farmers' 
Irr.  Dist.,  60  Neb.  310,  83  N.  W.  83 
(1900). 

d.  Under  Oregon  Laws. 
Under  the  Oregon  District  Irrigation 
Law  (Laws  1895,  p.  19)  the  board  of 
directors  of  the  district  have  power  to 
enter  upon  land  to  make  surveys  and  to 
locate  the  necessary  irrigation  works, 
canals,  etc.  They  may  acquire  by  pur- 
chase or  condemnation  or  other  lawful 
means,  all  lands,  water  rights,  reservoir 
sites  and  other  property  necessary  for 
the  construction,  use,  supply,  etc.,  of 
the  canals  and  works  to  be  purchased 
and  constructed  by  the  corporation.  They 
may  also  construct  the  necessary  dams, 
reservoirs,  and  works  for  the  collection 
of   water    for   the    district,    and    do   any 


other  lawful  act  necessary  to  be  done 
that  sufficient  water  may  be  furnished 
to  the  landowners  of  the  district  for 
irrigation  purposes.  Little  Walla  Walla 
Irr.  Dist.  v.  Preston,  46  Or.  5,  78  Pac. 
982   (1904). 

e.  To  Make  Plans  and  Specifications. 
Under  the  various  irrigation  laws  pro- 
viding for  and  regulating  the  formation 
and  management  of  irrigation  districts, 
the  board  of  directors  of  an  irrigation 
district  are  required  to  make  plans  and 
specifications  preliminary  to  the  work  of 
construction  or  of  assessment  to  pay  for 
the  construction  and  installation  of  the 
system.  Thus,  under  the  California 
Wright  Act  the  board  of  directors  are 
required  to  adopt  a  plan  or  plans  in  the 
alternative  for  the  acquisition  and  dis- 
tribution of  water,  and  for  the  construc- 
tion of  necessary  canals  and  works  before 
a  valid  estimate  of  the  money  required 
can  be  made.  Cullen  v.  Glendora  Water 
Co.,  113  Cal.  503,  521,  45  Pac.  822,  1047 
(1896).  See  39  Pac.  769  (1895).  See  also 
Healy  v.  Anglo-Californian  Bank,  5  Cal. 
App.  278,  90  Pac.  54  (1907).  And  under 
the  Oregon  Irrigation  District  Law 
(Laws  1905,  p.  19)  the  board  of  directors 
of  the  irrigation  district,  after  adopting 
plans  for  canals,  storage  reservoirs,  and 
works,  shall  give  notice  by  public  adver- 
tisement calling  for  bids  for  construction 
of  the  same  Little  Walla  Walla  Irr.  Dist. 


56 


Watee  and  Mineeal  Cases. 


[Idaho 


district  having  been  completed,  which  said  assessment  roll  shows  the 
value  of  the  assessable  property  of  the  district  to  be  $214,376.67,  and  the 
board  having  before  it  a  statement  of  the  estimated  expenditures  for  the 
care,  operation,  management,  and  improvement  for  the  fiscal  year  begin- 
ning July  1,  1905,  and  ending  June  30,  1906,  which  statement  is  on  file 
in  this  office  *  *  *  it  is  hereby  ordered  that  there  be  and  is  hereby 
levied  and  assessed  at  the  rate  of  seven  and  one-half  per  centum  against 
each  and  every  dollar  of  the  said  $214,376.67,  the  assessed  valuation  of 
the  district  for  said  maintenance  purposes,  which  assessment  is  to  be 
listed  and  carried  out  and  entered  in  the  proper  book  by  the  secretary  and 
delivered  to  the  treasurer  of  the  district  for  collection.  It  further  ap- 
pearing that  the  amount  of  interest  accruing  on  the  bonds  of  the  district 
for  the  ensuing  year,     *     *     *     it  is  hereby  ordered  that  there  be  and  is 


v.  Preston,  46  Or.  5,  78  Pax;.  982  (1904). 
And  under  all  the  laws,  such  notice  call- 
ing for  bids  for  construction  work  must 
describe  the  work  substantially  according 
to  the  plans  and  specifications.  Healy 
v.  Anglo-Californian  Bank,  5  Cal.  App. 
278,  90  Pac.  54    (1907). 

Where,  in  compliance  with  the  par- 
ticular statute  under  which  an  irriga- 
tion district  is  organized,  surveys,  plans, 
specifications,  and  maps  have  been  duly 
made,  upon  which  there  has  been  an 
issuance  of  bonds  and  the  system  of  irri- 
gation has  been  constructed  in  part,  and 
the  proceedings  from  the  bonds  are  in- 
adequate for  the  completion  of  the  con- 
struction and  installation  of  the  system 
a  new  bond  issue  may  be  authorized 
without  further  or  new  plans  and  speci- 
fications being  procured  by  the  board  of 
directors.  Pioneer  Irr.  Dist.  v.  Camp- 
bell, 10  Idaho  159,  77  Pac.  328  (1904). 

Where  the  statute  under  which  an  irri- 
gation district  is  organized  provides  for 
the  preparation  of  plans  and  specifica- 
tions, etc.,  as  the  basis  for  a  bond 
issue,  and  an  irrigation  company  may 
contract  with  an  engineer  to  furnish 
plans  for  the  construction  of  a  proposed 
canal,  from  which  the  board  of  directors 
of  the  district  may  estimate  the  cost 
thereof  and  the  amount  of  bonds  to  be 
voted  therefor.  Such  work  is  preliminary 
to  the  work  of  construction,  and  is  not 


to  be  paid  for  out  of  the  construction 
fund.  Willow  Springs  Irr.  Dist.  v.  Wil- 
son, 74  Neb.  269,  104  N.  W.  165   (1905). 

C.     Collector. 

The  collector  of  an  irrigation  district, 
acting  as  such,  is  a  de  facto  officer  of 
the  district  and  need  not  prove  that  he 
was  duly  elected  where  his  right  to  the 
office  is  not  called  in  question.  Baxter 
v.  Vineland  Irr.  Dist.,  136  Cal.  185,  sub 
nom.  Baxter  v.  Dickinson,  68  Pac.  601 
(1902).  The  salary  of  such  collector 
and  his  commissions  and  expenses  in 
litigation  to  enforce  the  collection  of 
assessments  levied  by  the  district  can 
be  paid  out  of  the  treasury  after  due 
allowance  by  the  board  only,  and  upon 
a  warrant  properly  drawn  therefor;  the 
collector  cannot  offset  against  assess- 
ments collected  by  him,  which  are  a  pub- 
lic fund,  his  claim  for  salary,  commis- 
sions, and  expenses  in  litigation  and  en- 
forcement of  the  collection  of  assessments. 
Perry  v.  Otay  Irr.  Dist.,  127  Cal.  565,  60 
Pac.  40  (1900). 

D.     Treasurer. 

The  treasurer  of  an  irrigation  district 
has  such  duties  to  perform  as  are  im- 
posed on  him  by  the  provisions  of  the 
statute  under  which  the  irrigation  dis- 
trict is  formed;  and  among  such  duties 
of  the  treasurer  is  that  to  pay  the  in- 
terest   coupons    upon    the    bonds    issued 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.    57 

hereby  levied  at  the  rate  of  seven  and  one-half  per  centum  against  each 
and  every  dollar  of  the  said  *  *  *  the  assessed  valuation  of  the  dis- 
trict, for  the  purpose  of  paying  said  interest,  which  assessment  is  to  be 
listed,  carried  out,  and  entered  in  the  proper  'book  and  delivered  to  the 
treasurer  for  collection.  It  further  appearing  that  the  warrants  in  the 
redemption  list  of  the  district  amount  to  the  sum  *  *  *  it  is  hereby 
ordered  that  there  be  and  hereby  is  levied  and  assessed  against  each  and 
every  dollar  of  the  said,  etc.  *  *  *  It  further  appearing  that  in  addi- 
tion to  the  foregoing  estimated  expenditures  *  *  *  there  be  and 
hereby  is  levied  and  assessed  a  toll  in  the  sum  of  one  dollar  against 
each  and  every  lot  within  the  limits  of  the  said  cities  of  Caldwell  and 
Nampa." 

The  record  then  shows  that  the  parties  stipulated  that  the  description 
contained  in  the  complaint  and  set  out  in  the  notice  of  sale  for  delinquent 


by  the  district;  this  duty  is  one  result- 
ing from  an  office  or  station  of  trust. 
But  the  personal  liability  of  the  treasurer 
for  interest  on  interest  coupons  attached 
to  bonds  issued  by  the  district  for  failure 
to  pay  such  coupons  on  presentation  can- 
not be  enforced  by  mandamus.  Hewel 
v.  Hogin,  3  Cal.  App.  248,  84  Pac.  1002 
(1906). 

E.  Superintendent      of      Irrigation 

Company. 

A  superintendent  of  irrigation,  elected 
by  the  voters  of  an  irrigation  district 
organized  in  certain  portions  of  a  county, 
the  functions  of  whose  office  are  to  be 
exercised  only  in  such  portions  of  the 
county  where  the  district  is  organized, 
is  an  officer  of  such  district,  and  not 
of  the  county.  Knox  v.  Los  Angeles 
County,  58  Cal.  50. 

F.    Salaries  of. 

1.     Generally. 

The  salaries  of  officers  and  the  ex- 
penses of  conducting  an  irrigation  dis- 
trict are  to  be  paid  out  of  the  fund  pro- 
vided for  that  purpose  by  the  law  under 
which  the  district  is  organized,  and  any 
fund  created  by  such  statute  from  a 
particular  source  cannot  be  diverted 
from  the  application  which  the  statute 
makes  of  such  fund.    Miller  v.  Patterson, 


120  Cal.  286,  52  Pac.  589    (1898).     See 
ante  II,  E,  this  note. 

A  fund  derived  wholly  from  tolls  and 
charges  fixed  by  the  beard  of  directors 
of  the  district  upon  consumers  of  water, 
using  the  pipes  and  canals  of  a  district, 
is  a  part  of  the  general  fund  of  a  dis- 
trict, applicable  to  the  payment  of  sala- 
ries of  employees  and  other  expenses 
provided  for  in  section  37  of  the  Wright 
Act,  where  those  salaries  and  expenses 
are  not  otherwise  provided  for,  and  the 
fact  that  the  fund  is  carried  on  the  books 
of  the  irrigation  district  as  "the  water 
fund"  in  no  wise  affects  its  character  as 
a  general  fund.  Mitchell  v.  Patterson, 
120  Cal.  286,  52  Pac.  589   (1898). 

2.      Mandamus   to    Enforce. 

In  an  action  against  an  irrigation  dis- 
trict to  enforce  the  payment  of  salary, 
a  misnomer  in  regard  to  the  name  of  the 
president  of  an  irrigation  district  in 
findings,  judgment  and  statement  on 
appeal,  in  mandamus  proceedings  to  com- 
pel the  payment  of  warrants  issued  to 
a  former  officer  of  the  district  for  salary 
accrued  and  unpaid  during  his  incum- 
bency, where  the  name  of  the  president 
is  accurately  set  forth  in  the  complaint, 
is  a  mere  clerical  error  which  may  be 
corrected  by  order,  upon  the  court's 
attention  being  called  to  it.     Mitchell  v. 


58 


Water  and  Mineral  Cases. 


[Idaho 


taxes  is  the  description  of  the  right  of  way  of  the  plaintiff  company 
as  contained  upon  the  assessment  roll  for  the  year  1905,  and  is  an  exact 
copy  of  the  assessment  roll  so  far  as  the  description  is  concerned.  The 
description  thus  referred  to,  as  it  appears  in  the  complaint  and  in  the 
delinquent  notice,  is  as  follows: 
Idaho  Central  R.  R.,  lots  7  and  8,   blk.  87;  lots  2  to  6  and  9  to  12,  blk.  98; 

lots  7  and  8,  blk.  90,  Nampa  G.  &  K $10.94 

O.  S.  L.  R.  R.  Beginning  at  intersection  of  center  line  of  track  and  north 
line  SW  1-4  NW  1-4,  sec.  22-3-2,  thence  northwesterly  a  strip  of  land 
200  ft.  wide  lying  100  ft.  each  side  of  center  line  of  0.  S.  L.  track, 
through  sec.  22,  21-16,  17,  8,  7,  6,  Tp.  3  N.  R.  2  W.j  sec.  1,  3,  3;  sec. 
36,  35,  26,  27,  22,  Tp.  4  N.  R.  3  W.;  to  intersection  with  N.  line  SW 
on    quarter    sec.    22-4-3-1S6,    3A $331.55 

A  number  of  other  descriptions  similar  to  the  above  follow.    The  ques- 
tion arises,  Was  this  a  compliance  with  the  statute? 


Patterson,    120    Cal.    286,    52    Pac.    589 
(1898). 

VI.    Bonds    of. 

A.      In    General. 

The  court  will   take   judicial   notice  of 

the  financial  history  of  the  bonds  of  an 

irrigation    district.      Hughson    v.    Crane, 

115  Cal.  404,  47  Pac.  120  (1896). 

Where  the  secretary's  name  is  litho- 
graphed on  the  coupons  of  the  bonds  of 
an  irrigation  district,  but  the  bonds  are 
not  signed  by  him,  as  required  by  the 
irrigation  district  law,  the  bonds  are 
void.  Wright  v.  East  Riverside  Irr. 
Dist.,  138  Fed.  313    (1905). 

Where  lands  have  been  excluded  from 
a  district,  or  a  landowner  has  waived 
his  right  to  the  use  of  water  from  the 
district  in  accordance  with  the  provisions 
of  1he  law  under  which  an  irrigation" 
district  is  formed,  his  lands  will  not  be 
liable  for  the  bonds  issued  by  the  dis- 
trict, or  the  interest  thereon,  and  can- 
not be  assessed  for  the  payment  of  either. 
Nampa  &  M.  Irr.  Dist.  v.  Brose,  11 
Idaho  474,  83  Pac.  499  (1905).  See 
post  VI,  O,  and  VII,  L,  N,  2,  this  note. 

B.    Attack   on. 

1.     Generally. 

The  regularity  and  the  validity  of  the 

issue  of  bonds  by  an  irrigation  district 

issued  under  the  provisons  of  the  Wright 


Act  can  be  attacked  only  under  the  pro- 
visions of  that  act.  Miller  v.  Perris 
Irr.  Dist.,  85  Fed.  693,  701  (1S98)  ;  In 
re  Central  Irr.  Dist.,  117  Cal.  382,  387, 
49  Pac.  354  (1S97).  Where  it  is  not 
shown  that  the  bonds  issued  by  an  irri- 
gation district  are  in  the  hands  of  bona 
fide  holders,  they  may  be  declared  in- 
valid on  proper  showing  made.  Hughson 
v.  Crane,  115  Cal.  404,  47  Pac.  120 
(1896);  Baxter  v.  Vineland  Irr.  Dist., 
136  Cal.  1S5,  190  (1902),  sub  nom. 
Baxter  v.  Dickinson,  68  Pac.  601  (1902). 
A  void  bond  issue  cannot  be  confirmed. 
See  ante  III,  G,  3,  this  note. 

2.  Action  to  Cancel, 
a.  Generally. 
A  landowner  and  taxpayer  within  an 
irrigation  district  may  maintain  an 
action  on  behalf  of  himself  and  other 
landowners  similarly  situated  for  the 
cancellation  of  bonds  of  the  irrigation 
district  which  have  been  illegally  issued, 
and  to  enjoin  further  issue  of  such  bonds, 
and  to  enjoin  the  levy  of  assessments  to 
pay  annual  interest  on  the  bonds  already 
issued,  and  may  make  the  district  and 
the  board  of  directors  parties  defendant 
to  the  action.  Sechrist  v.  Rialto  Irr. 
Dist.,  129  Cal.  640,  62  Pac.  261    (1900). 

b.     Complaint,  Allegations  in. 
In  an  action  by  a  landowner  and  tax- 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.    59 


Section  26  of  the  act  under  consideration  provides:  "At  its  regular 
meeting  in  October  the  board  of  directors  shall  levy  an  assessment  upon 
the  basis  as  determined  in  the  manner  provided  in  section  eleven  of  this 
act,  sufficient  to  raise  the  annual  interest  on  the  outstanding  bonds. 
*  *  *  The  secretary  of  the  board  must  compute  and  enter  into  a  sepa- 
rate column  of  the  assessment  book  the  respective  sums,  in  dollars  and 
cents,  to  be  paid  as  an  assessment  on  the  property  therein  enumerated." 

It  will  thus  be  seen  that  the  order  of  the  board  levying  such  assess- 
ment embraces  within  its  terms  every  act  required  by  the  statute  to  be 
done  by  the  board  in  levying  such  assessment,  and  that  the  assessment 
roll  was  made  up  and  contained  every  fact  required  to  be  stated  therein 
by  this  statute.  The  order  of  the  board  directed:  "Which  assessment 
is  to  be  listed  and  carried  out  and  entered  in  the  proper  book  by  the 


payer  within  an  irrigation  district  to 
have  canceled  bonds  issued  by  the  dis- 
trict under  an  illegal  order,  he  need  not 
allege  in  his  complaint  or  show  on  the 
trial  that  he  made  a  previous  demand 
on  the  district  to  bring  such  action. 
Sechrist  v.  Rialto  Irr.  Dist.,  129  Cal. 
640,  62  Pac.  261  (1900);  and  he  need 
not  aver  in  his  complaint  or  show  on  the 
hearing  a  tender  of  restitution  by  him- 
self or  by  the  district  of  the  considera- 
tion received  by  the  district  for  such 
bonds.  Miller  v.  Perris  Irr.  Dist.,  92 
Fed.  263  (1899)  ;  Sechrist  v.  Rialto  Irr. 
Dist.,  129  Cal.  640,  62  Pac.  261  (1900). 
See  Divine  v.  Board  of  Supervisors,  121 
Cal.  670,  54  Pac.  262  (1898);  Chase  v. 
Los  Angeles,  122  Cal.  540,  55  Pac.  414 
(1898). 

In  an  action  to  cancel  bonds  issued 
by  an  irrigation  district  under  the 
Wright  Act,  which  could  not  be  legally 
issued  for  labor,  alleging  that  the  bonds 
were  issued  in  payment  for  labor  and 
materials,  it  is  sufficient  to  show  the 
invalidity  of  the  bond  issue.  Miller  v. 
Perris  Irr.  Dist.,  92  Fed.  263  (1899). 
c.  Limitation  of  Action. 
In  an  action  to  cancel  the  bonds  of 
an  irrigation  district,  where  any  part 
of  the  cause  of  action  is  not  barred  by 
the  statute  of  limitations,  a  demurrer 
setting  up  the  statute  is  properly  over- 
ruled.    Sechrist  v.  Rialto  Irr.  Dist.,  129 


Cal.  640,  62  Pac.  201  (1900).  The 
statute  of  limitations  against  an  action 
to  cancel  bonds  of  an  irrigation  district 
does  not  run  from  the  date  of  the  order 
for  the  issuance  of  the  bonds,  but  only 
from  the  date  of  the  delivery  of  the 
bonds  for  a  valuable  consideration. 
Sechrist  v.  Rialto  Irr.  Dist.,  129  Cal. 
640,  62  Pac.  261  (1900).  As  to  the 
statute  of  limitations  in  such  actions, 
see  ante  IV,  F,  this  note. 

3.  Action  to  Annul  Tax  Sale,  etc. 
An  action  brought  by  a  landowner  and 
taxpayer  of  an  irrigation  district  to 
annul  the  sale  of  his  lands  for  the  pur- 
pose of  paying  interest  on  bonds  of  the 
district,  and  to  annul  the  bonds,  is  a 
collateral  attack  upon  said  bonds.  Bax- 
ter v.  Vineland  Irr.  Dist.,  136  Cal.  185 
(1902),  sub  nom.  Baxter  v.  Dickinson, 
68  Pac.  601  (1902).  As  to  collateral 
attack,  see  ante  III,  J,  2,  and  IV,  E,  this 
note.  The  owners  of  the  outstanding 
bonds  are  proper  parties  to  such  an 
action  and  may  intervene  and  defend. 
Baxter  v.  Vineland  Irr.  Dist.,  136  Cal. 
185  (1902),  sub  nom.  Baxter  v.  Dickin- 
son, 68  Pac.  601    (1902). 

C.    Bona  Fide  Purchasers. 
1.     Generally. 
The  general  rule  is  that  bona  fide  pur- 
chasers of  bonds  which  recite  that  they 
are  issued  pursuant  to  law,  are  not  re- 


60 


Watee  and  Minekal  Cases. 


[Idaho 


secretary  and  delivered  to  the  treasurer  of  the  district  for  collection." 
This  duty  was  performed  by  the  secretary  in  accordance  with  the  direc- 
tion of  the  board  and  the  provisions  of  the  statute.  Cooley  on  Taxation, 
p.  745,  states  the  rule  as  follows:  "The  designation  of  the  land  will  be 
sufficient  if  it  afford  the  owner  the  means  of  identification  and  do  not 
positively  mislead  him  or  is  not  calculated  to  mislead  him."  In  dis- 
cussing the  sufficiency  of  the  description  of  land,  when  listed  for  taxa- 
tion, the  Supreme  Court  of  California  in  the  recent  case  of  Best  v. 
Wohlford,  144  Cal.  733,  78  Pac.  293,  says :  "The  strictness  of  construc- 
tion which  at  one  time  prevailed  in  matters  of  taxation  has  been  greatly 
relaxed  in  modern  days.  The  obligation  of  all  citizens  to  contribute  to 
the  expenses  of  government  is  recognized,  and  instead  of  regarding  pro- 
ceedings for  the  levying  and  collection  of  taxes  as  hostile  to  the  property 


quired  to  look  farther,  such  recital 
being  sufficient  evidence.  Baxter  v.  Vine- 
land  Irr.  Dist.,  136  Cal.  185  (1902), 
sub  nom.  Baxter  v.  Dickinson,  68  Pac. 
001  ( 1902) .  But  this  rule  does  not  apply 
in  those  cases  where  the  purchaser  of 
the  bonds  had  actual  knowledge  of  a 
fact  which,  in  connection  with  the  stat- 
ute, establishes  the  irregularity  of  the 
issue.  Leeman  v.  Perris  Irr.  Dist.,  140 
Cal.  540,  74  Pac.  24  (1903).  The  reason 
for  this  exception  is  that  the  board  of 
directors  of  an  irrigation  district,  which 
is  a  quasi  public  municipal  corporation 
(see  ante  I,  H,  1,  this  note),  have  only 
such  powers  as  are  expressly  conferred 
upon  them  by  statute  or  impliedly  neces- 
sary to  carry  out  the  purposes  of  the  ir- 
rigation law.  Stimson  v.  Allesandro  Irr. 
Dist.,  135  Cal.  389,  67  Pac.  496,  1034 
(1902);  Leeman  v.  Perris  Irr.  Dist., 
140  Cal.  540,  74  Pac.  24  (1903).  See 
ante  V,  B,  2,  a,  this  note.  And  all  per- 
sons dealing  with  such  board  of  directors 
are  charged  with  a  knowledge  of  the 
limitation  upon  their  power,  and  can 
acquire  no  right  of  action  under  written 
instruments  entered  into  in  disregard  of 
the  statutory  requirements.  Hughson  v. 
Crane,  115  Cal.  404,  47  Pac.  120  (1896). 
Where  bonds  issued  by  an  irrigation 
district  are  within  the  authority  of  the 
board  of  directors  and  not  ultra  vires, 
and  recite  that  they  were  issued  in  pur- 


suance of  a  certain  act,  and  the  only 
question  presented  is  as  to  irregularities 
in  keeping  the  records  and  conducting 
the  bond  election  which  authorized  the 
issue  of  the  bonds,  a  bona  fide  purchaser 
without  notice  of  such  irregularities  has 
the  right  to  presume  that  the  bonds  are 
a  legal  obligation  of  the  district  without 
inquiring  into  the  regularity  of  tha 
keeping  of  the  records  of  the  district, 
or  the  regularity  in  conducting  the 
election  voting  the  bonds  and  the  adver- 
tising of  the  bonds  for  sale,  and  will  be 
protected  against  any  mere  irregularities 
in  these  regards  in  the  proper  exercise 
of  a  granted  power.  Baxter  v.  Vine- 
land  Trr.  Dist.,  136  Cal.  185  (1902), 
sub  nom.  Baxter  v.  Dickinson,  68  Pac. 
601    (1902). 

Whether  a  bona  fide  holder  of  the  bonds 
of  an  irrigation  district  illegally  issued 
at  ninety  per  cent,  of  their  face  value  to 
a  contractor  in  payment  for  work  done 
by  him,  could  be  enforced  by  him  against 
the  district,  or  whether  the  district 
would  be  liable  for  the  interest  upon  any 
of  the  bonds  thus  illegally  disposed  of, 
under  the  California  Vv right  Act,  quaere. 
Hughson  v.  Crane,  115  Cal.  404,  47  Pac. 
120  (1896).  But  he  may  recover  con- 
sideration therefor.  See  post  VI,  C,  2, 
and  VIII,  C,  1,  this  note. 

2.      Recovery  of  Consideration. 

A  bona  fide  holder  of  irrigation  bonds 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.    61 


owner,  he  is  considered  to  be  interested  equally  with  all  other  citizens 
in  the  prompt  collection  of  the  taxes.  A  tax  properly  imposed  upon  his 
property  will  be  upheld  if  the  description  of  the  property  is  sufficient 
to  give  him  notice  that  it  is  burdened  with  the  tax." 

It  is  next  contended  that  the  district  has  no  power  or  jurisdiction  to 
assess  the  property  of  the  respondent;  that  such  property  can  only  be 
assessed  by  the  state  board  of  equalization.  The  power  and  jurisdic- 
tion of  the  state  board  of  equalization  depends  wholly  upon  the  au- 
thority given  it  by  statute;  and  we  are  unable  to  find  any  provision  of 
the  statute  which  gives  to  the  state  board  of  equalization  the  power  or 
jurisdiction  to  assess  railroad  property  or  other  corporate  property  within 
an  irrigation  district.  The  power  and  jurisdiction  as  given  to  the  state 
board  of  equalization  by  the  statute  has  reference  to  assessments  made 


which  were  illegally  issued  by  the  dis- 
trict, who  desires  to  have  the  considera- 
tion paid  therefor  restored  by  the  dis- 
trict, must  allege  in  his  complaint  and 
prove  on  the  trial  facts  which  will  en- 
title him  to  such  restoration.  Miller  v. 
Perris  Irr.  Dist.,  92  Fed.  263  (1899). 
See  post  VIII,  C,  1,  this  note. 

The  holder  of  bonds  who  took  them 
with  knowledge  that  they  had  been  is- 
sued in  violation  of  the  statute  in 
exchange  for  water-right  certificates,  or 
for  warrants  given  in  payment  of  claims 
for  labor  and  salaries,  cannot  recover 
the  consideration  paid  therefor.  Lee- 
man  v.  Perris  Irr.  Dist.,  140  Cal.  540, 
74  Pac.  24  (1903).  See  post  VI,  H,  this 
note. 

D.  Confirmation  Proceedings. 
1.  Generally. 
Proceedings  for  the  confirmation  of  the 
bond  issue  of  an  irrigation  district  are 
provided  for  by  the  various  statutes  un- 
der which  the  irrigation  districts  are 
organized;  such  proceedings  are  proceed- 
ings in  rem  the  same  as  proceedings  for 
the  confirmation  of  the  organization  of 
the  district  (see  ante  II,  D,  this  note), 
and  the  judgment  is  binding  accordingly. 
Perris  Irr.  Dist.  v.  Thompson,  116  Fed. 
832,  836  (1902)  :  Modesto  Irr.  Dist.  v. 
Tregea,  88  Cal.  334.  26  Pac.  237  (1891)  ; 
Cullen  v.  Glendora  Water  Co.,  113  Cal. 
503,  512,  45  Pac.  822,  1047   (1896).     See 


39  Pac.  769  (1895);  People  v.  Linda 
Vista  Irr.  Dist.,  128  Cal.  477,  481,  61 
Pac.  86  (1900).  The  object  of  such  pro- 
ceedings is  to  establish  the  validity  of 
the  bonds  as  against  the  irrigation  dis- 
trict and  all  persons  interested  therein, 
and  would  be  effective  for  the  protection 
of  investors,  and  the  judgment  must 
bind  not  only  the  parties  appearing,  but 
the  whole  world.  Modesto  Irr.  Dist.  v. 
Tregea,  88  Cal.  334,  26  Pac.  237  (1891). 
In  such  proceedings  under  the  statute 
to  obtain  judgment  of  confirmation  and 
approval  of  the  issuance  of  bonds,  the 
presumptions  and  rules  of  construction 
which  apply  in  a  collateral  attack  upon 
the  bonds  after  they  have  been  issued 
and  confirmed,  have  no  application;  the 
plaintiff  district  is  required  to  show 
every  essential  fact  to  the  establishment 
of  the  issues  presented  for  determination. 
Directors  of  Fallbrook  Irr.  Dist.,  v. 
Abila,  106  Cal.  365,  39  Pac.  793  (1895). 
See  post  VI,  D,  6,  this  note. 

2.  Board  of  Directors  May  Bring 
Action. 
The  board  of  directors  of  an  irrigation 
district,  as  the  legal  representatives 
thereof,  may  file  a  petition  in  pursuance 
of  the  statute  under  which  the  district  is 
organized,  to  have  a  bond  issue 
theretofore  issued  confirmed  (see  ante 
III,  E,  this  note)  ;  and  under  the  Idaho 
Laws   (Laws  1903,  p.  150)   such  proceed- 


62 


"Watee  and  Mineral  Cases. 


[Idaho 


for  general  state,  county,  and  municipal  purposes.  The  assessment 
made  by  the  board  of  directors  is  simply  fixing  the  rate  necessary  and 
required  to  raise  revenue  required  by  the  district  as  apportioned  to  the 
lands  of  the  district,  according  to  benefits.  The  principle  involved  in 
assessments  for  local  improvements  is  different  from  that  underlying 
general  taxation.  The  organization  of  the  district,  in  the  first  instance, 
was  intended  for  local  improvement,  and  the  assessment  levied  is  for 
the  purpose  of  carrying  out  the  local  improvement;  and  we  do  not 
understand  the  rule  to  be  that  the  general  method  of  fixing  values  and 
making  assessments  against  property  for  general  tax  purposes  applies 
to  levies  made  for  local  improvements.  As  said  by  the  Supreme  Court 
of  California  in  the  case  of  Turlock  Irr.  Dist.  v.  Williams,  76  Cal.  360, 
18  Pac.  379:    "Nor  does  it  follow  that  the  method  of  assessments,  and 


ings  may  be  confirmed  where  the  said 
bonds  or  any  of  them  have  been  sold  at 
the  time  of  the  commencement  of  such 
proceedings.  Nampa  &  M.  Irr.  Dist.  v. 
Brose,  11  Idaho  474,  83  Pac.  499   (1905). 

3.     Landowner   May   Bring  Action. 

Any  landowner  within  an  irrigation 
district  interested  in  the  price  to  be 
realized  on  the  sale  of  the  bonds  thereof 
has  a  right  to  insist  that  the  required 
steps  to  give  the  court  jurisdiction  to 
pronounce  a  binding  degree  be  regularly 
taken,  and  to  this  end  may  become  an 
actor.  Modesto  Irr.  Dist.  v.  Tregea,  88 
Cal.  334,  26  Pac.  237    (1891). 

4.     Notice. 

In  order  that  the  proceedings  for  the 
confirmation  of  the  bond  issue  of  an 
irrigation  district  shall  be  valid  under 
the  California  Act  (Stats.  1SS9,  p.  212), 
there  is  required  the  publication  of  a 
notice  of  the  filing  of  the  petition,  and' 
this  notice,  where  properly  given,  is  suf- 
ficient to  give  the  court  jurisdiction  to 
render  a  judgment  affirming  the  legality 
of  the  organization  of  the  district  and 
the  legality  and  validity  of  its  ordinance 
for  the  issuance  of  its  bonds,  and  such 
judgment  will  be  binding  upon  the 
lands  of  the  district  and  the  owners 
thereof.  Modesto  Irr.  Dist.  v.  Tregea,  88 
Cal.  334,  20  Pac.  237    (1891). 

In    those    cases    where    the    original 


petition  is  amended  after  the  first  pub- 
lication and  before  the  hearing  to  con- 
firm the  bonds,  by  setting  out  other 
orders  for  the  issue  or  sale  of  bonds,  but 
not  referred  to  in  the  original  petition, 
the  publication  of  a  new  notice  is  re- 
quired to  give  the  court  jurisdiction. 
Modesto  Irr.  Co.  v.  Tregea,  88  Cal.  334, 
26    Pac.   237    (1891). 

5.       Petition    and     Prayer. 

The  prayer  to  the  petition  for  the  con- 
firmation of  the  validity  of  bonds  ordered 
and  issued  by  an  irrigation  district 
must  be  read  in  connection  with  the 
petition  itself  in  order  to  understand  its 
meaning,  and  if  it  be  for  the  judicial 
examination,  approval  and  confirmation 
of  all  the  proceedings  set  out  in  the 
petition,  it  includes  those  for  the  organ- 
ization of  the  district,  for  they,  like 
the  rest,  are  essential  to  the  legality  and 
validity  of  the  bonds.  Modesto  Irr. 
Dist.  v.  Tregea,  88  Cal.  334,  26  Pac.  237 
(1891).  See  ante  III,  G,  2,  this  note. 
6.     Burden   of  Proof. 

In  a  proceeding  for  the  confirmation 
of  the  bond  issue  of  an  irrigation  district 
the  board  of  directors  or  the  party 
petitioning  is  the  actor  in  the  case,  and 
has  the  burden  of  proof  of  the  issues 
upon  which  the  petition  asks  the  judg- 
ment of  the  court.  In  re  Madera  Irr. 
Dist.,  92  Cal.  296,  330,  339,  28  Pac.  272, 


1909]  Oregon  Shoet  Line  E.  Co.  v.  Pioneer  Irrigation  Dist. 


63 


their  collection,  adopted,  must  be  assimilated  to,  and  follow  exactly,  the 
mode  provided  in  the  Constitution  for  the  assessment  and  collection  of 
taxes  for  general  state  purposes.  The  nature  of  the  assessment  is  one 
for  local  improvements,  which,  however,  eventuate  in  the  advancement 
of  the  public  good,  and  such  assessments  and  collections  can  be  lawfully 
made.  It  is  'clear,  that  those  clauses  of  the  Constitution  which  provide 
that  taxation  shall  be  equal  and  uniform,  and  which  prescribe  the  mode 
of  assessment,  and  the  persons  by  whom  it  shall  be  made,  and  that  all 
property  shall  be  taxed,  have  no  application  to  assessments  levied  for 
local  improvement.'  "  The  legislature,  in  providing  for  the  valuation 
and  taxation  of  telegraph,  telephone,  and  railroad  tracts,  had  reference 
only  to  assessments  made  for  general  state,  county,  and  municipal  pur- 
poses, and  did  not  have  in  mind  or  contemplate  assessments  made  for 


675,  27  Am.  St.  Rep.  106,  14  L.  R.  A. 
755  (1891)  ;  Fallbrook  Irr.  Dist.  v.  Abila, 
106  Cal.  365,  39  Pac.  793.  See  ante  III, 
I,  3,  this  note. 

7.     Decree. 

In  an  application  on  notice  duly  given 
for  the  confirmation  of  the  bond  issue 
of  an  irrigation  district,  based  on  peti- 
tion required  by  the  statute,  an  inquiry 
into  the  validity  of  the  original  organ- 
ization of  the  district  is  necessarily  in- 
volved, and  the  confirmatory  decree  may 
adjudge  the  validity  of  the  organization 
of  the  district  without  special  prayer  in 
that  behalf.  Fogg  v.  Perris  Irr.  Dist., 
154  Cal-  209,  217,  97  Pac.  316  (1908). 
See  III,  G,  2,  this  note.  The  decree  is 
res  adjudicata  and  binds  the  whole 
world.  See  ante  III,  D,  this  note.  Where 
a  decree  confirming  the  validity  of  pro- 
ceedings for  the  issue  of  bonds  is  partly 
valid  and  partly  void,  its  invalidity  will 
not  affect  the  validity  of  that  portion  of 
the  decree  in  which  the  court  had  juris- 
diction to  pronounce  judgment  and  enter 
its  decree.  Modesto  Irr.  Co.  v.  Tregea, 
88  Cal.  334,  26  Pac.  237    (1891). 

E.     Coupons,    Payment   of. 

The  interest  coupons  attached  to  bonds 
issued  by  an  irrigation  district  are  pay- 
able out  of  the  fund  and  in  the  manner 
provided  by  the  law  under  which  the 
district  is  organized,  and  the  holders  of 
the  bonds  are  entitled  to  have  the  moneys 


collected  for  the  payment  of  the  in- 
terest coupons  applied  to  that  purpose. 
The  methods  of  enforcement  of  this  right 
are  treated  in  post  VI,  K,  1,  2,  this  note. 

F.  Date  of   Issue. 

The  date  of  issue  of  the  bonds  of  an 
irrigation  district  may  become  important 
in  determining  the  validity  of  such  issue, 
particularly  where  that  date  shows  that 
the  bonds  were  issued  to  run  for  a  longer 
or  a  shorter  term  than  that  provided 
by  the  statute  under  which  they  were 
issued  (see  post  VI,  Q,  this  note)  ;  and 
where  such  bonds  are  antedated,  and  not 
signed  by  the  person  who  was  secretary 
of  the  irrigation  district  at  the  time  of 
the  supposed  issue  thereof,  as  required  by 
law,  they  are  void.  Wright  v.  East 
Riverside  Irr.  Dist.,  138  Fed.  313 
(1905). 

In  determining  the  effect  and  legality 
of  such  bonds,  the  entire  instrument 
must  be  considered.  Thus  where  irriga- 
tion bonds  bore  date  of  November  17, 
1890,  and  the  first  payment  of  semi- 
annual interest  fell  due  on  July  1,  1891, 
and  the  instalments  of  principal  were 
imade  payable  in  the  required  number  of 
years  after  January  1,  1891,  the  date 
from  which  they  began  to  bear  interest, 
the  bonds  are  to  be  regarded  in  effect  as 
having  been  issued  on  January  1,  1891, 
which  may  be  treated  as  their  real  date, 
instead  of  the  nominal  date  of  November 


64 


"Watee  and  Mineral  Cases. 


[Idaho 


local  improvements ;  and  such,  necessarily,  is  true  for  the  reason  that  the 
assessments  for  local  improvements  necessarily  must  depend  upon  the 
benefits  accruing  to  the  property  assessed ;  and  it  would  be  impracticable 
for  the  state  board  of  equalization  to  determine,  at  its  stated  and  regular 
meetings  as  fixed  by  law,  the  question  of  benefits  accruing  or  to  accrue 
by  reason  of  local  improvements. 

While  section  12,  art.  7,  of  the  Constitution,  creates  the  state  board 
of  equalization,  yet  the  duties  of  such  board  are  left  to  the  legislature 
to  prescribe,  and  the  duties  thus  prescribed  by  the  legislature  have  to 
do  with  the  assessment  of  railroad  property  for  general  taxation  pur- 
poses. Section  6  of  the  same  article  provides  that  "the  legislature  shall 
not  impose  taxes  for  the  purpose  of  any  county,  city,  town,  or  other 
municipal  corporation,  but  may  by  law  invest  in  the  corporate  authori- 


17,  1890;  and  execution  and  issuance 
of  the  bonds  in  this  form  and  manner  is 
a  substantial  compliance  with  the  statute 
both  as  to  date  and  term  of  running. 
Stowell  v.  Rialto  Irr.  Dist.,  155  Cal.  215, 
100  Pac.  248  (1909).  See  Flagg  v.  City 
of  Palmyra,  33  Mo.  440  (1863)  ;  State  v. 
Moore,  46  Neb.  590,  65  N.  W.  193,  50 
Am.  St.  Rep.  626  (1895)  ;  Yesler  v.  City 
of  Seattle,  1  Wash.  St.  308,  25  Pac. 
1014  (1891);  Rock  Creek  Township  v. 
Strong,  96  U.  S.  271,  24  L.  Ed.  815 
( 1877 )  ;  Dows  v.  Town  of  Elmwood,  34 
Fed.  114  (1888);  South  St.  Paul  v. 
Lamprecht  Bros.  Co.,  88  Fed.  449  (1898). 

G.     De  Facto  District. 
The  bonds  issued  by  a  de  facto  irriga- 
tion  district   are  valid   in  the  hands   of 
innocent  purchasers  for  value.     See  ante 
I,  F,  this  note. 

H.  Disposition  of,  Methods  of 
1.  California  Statute. 
Under  the  California  Wright  Act,  and 
the  amendments  thereof,  the  only  method 
in  which  the  board  of  directors  of  an 
irrigation  district  can  dispose  of  the 
bonds  voted  by  the  district  is  in  the  man- 
ner provided  by  the  statute,  which  is 
either  ( 1 )  to  exchange  them  for  property 
purchased  for  construction  purposes  at 
their  par  value  under  the  provision  of 
section  12,  and  (2)  to  sell  them  for 
money    in   the    open    market,    under    the 


restrictions  and  limitations  of  section 
16  of  that  act,  at  not  less  than  ninety 
per  cent,  of  their  face  value;  they  cannot 
(3)  exchange  them  for  any  other  pur- 
pose, or  make  payments  with  them  at 
ninety  per  cent,  of  their  face  value  in 
discharge  of  any  obligation  of  the  dis- 
trict, or  (4)  dispose  of  the  bonds  or  the 
moneys  received  from  a  sale  thereof  for 
any  other  object  than  to  provide  for  the 
construction  fund  contemplated  by  the 
act.  Hughson  v.  Crane,  115  Cal.  404,  47 
Pac.  120  (1896);  Stowell  v.  Rialto  Irr. 
Dist.,  155  Cal.  215,  100  Pac.  248  (1909). 
Thus,  they  cannot  deliver  bonds  to  a 
contractor  in  payment  for  construction 
work  done  by  him  for  the  district 
(Hughson  v.  Crane,  115  Cal.  404,  47  Pao. 
120 — 1896;  Leeman  v.  Perris  Irr.  Dist., 
140  Cal.  540,  74  Pac.  24—1903),  or  for 
warrants  given  in  payment  of  claims  for 
labor  and  salaries.  Leeman  v.  Perris  Irr. 
Dist.,  140  Cal.  540,  74  Pac.  24  (1903). 
While  the  board  of  directors  may,  under 
the  provisions  of  section  12,  issue  and 
turn  over  the  bonds,  at  their  par  value, 
in  payment  for  property  acquired  (Stow- 
ell v.  Rialto  Irr.  Dist.,  155  Cal.  215,  100 
Pac.  248 — 1909),  they  are  not  authorized 
to  make  a  contract  with  a  water  company 
whereby  the  district  issues  all  its  bonds 
in  consideration  of  the  mere  executory 
promises  of  the  water  company  that  it 
will    in    the    future   lease   water   to   the 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     65 


ties  thereof,  respectively,  the  power  to  assess  and  collect  taxes  for  all 
purposes  of  such  corporation;"  and  section  8  of  the  same  article  pro- 
vides :  "The  power  to  tax  corporations  or  corporate  property,  both  real 
and  personal,  shall  never  be  relinquished  or  suspended,  and  all  corpo- 
rations in  this  state  or  doing  business  therein,  shall  be  subject  to  taxation 
for  state,  county,  school,  municipal,  and  other  purposes,  on  real  and  per- 
sonal property  owned  or  used  by  them,  and  not  by  this  Constitution  ex- 
empted from  taxation  within  the  territorial  limits  of  the  authority  levy- 
ing the  tax."  Yet,  while  the  Constitution  creates  the  state  board  of 
equalization,  it  also  authorizes  the  legislature  to  invest  in  counties,  cities, 
towns,  or  other  municipal  corporations  the  power  to  assess  and  collect 
taxes,  and  also  provides  that  the  power  to  tax  corporate  property  shall 
never  be  relinquished  or  suspended;  and  that  all  corporations  in  this 


district  at  a  stipulated  rental.  Stein- 
son  v.  Allesandro  Irr.  Dist.,  135  Cal.  389, 
392,  393,  67  Pac.  496,  1034  (1902); 
Leeman  v.  Perris  Irr.  Dist.,  140  Cal.  540, 
74  Pac.  24  (1903).  The  provisions  of 
section  15  of  the  Wright  Act  are  merely 
directory  as  to  the  method  in  which 
bonds  are  to  be  disposed  of,  leaving  the 
matter  entirely  in  the  discretion  of  the 
board  of  directors.  Modesto  Irr.  Dist. 
v.  Tregea,  SS  Cal.  334,  26  Pac.  237 
(1891).  The  directors  need  not  person- 
ally sell  the  bonds;  this  may  be  done 
by  another  under  their  direction.  See 
Brownell  v.  Town  of  Greenwich,  114  N. 
Y.  518,  22  N.  E.  24,  4  L.  R.  A.  685 
(1889).  But  the  board  of  directors  has 
no  power  to  turn  over  the  bonds  to  an 
agent  to  be  sold  by  him  at  less  than 
ninety  per  cent,  of  their  par  value.  Hugh- 
son  v.  Crane,  115  Cal.  404,  47  Pac.  120 
(1896)  ;  Stowell  v.  Rialto  Irr.  Dist.,  155 
Cal.  215,  100  Pac.  248  (1909).  The  ex- 
press provisions  of  section  12,  giving  to 
the  board  power  to  exchange  the  bonds 
of  the  district  at  their  par  value  for 
certain  property,  excludes  the  right  of 
the  board  to  exchange  them  for  any  other 
purpose  or  to  dispose  of  them  in  any 
other  manner  than  by  sale  as  authorized 
by  section  16.  Hughson  v.  Crane,  115 
Cal.  404,  47  Pac.  120  (1896)  ;  Stowell  v. 
Rialto  Irr.  Dist.,  155  Cal.  215,  100  Pac. 
248    (1909). 

W.    &   M—  5 


Where  bonds  of  an  irrigation  district 
have  been  illegally  issued  in  exchange 
for  water-right  certificates,  or  for  war- 
rants given  in  payment  of  claims  for 
labor  and  salaries,  an  action  cannot  be 
maintained  upon  such  bonds  by  a  plain- 
tiff who  knew  when  he  took  the  bonds 
that  they  were  so  issued  in  violation  of 
statute.  Leeman  v.  Perris  Irr.  Dist., 
140  Cal.  540,  74  Pac.  24  (1903).  As  to 
right  to  recover  consideration  paid 
therefor,  see  ante  VI,  C,  2,  and  post  VIII, 
C,  1,  this  note. 

2.  Nebraska    Statute. 

Under  the  Nebraska  Irrigation  Law3 
(Laws  1895,  c.  70,  §  10)  the  board  of 
directors  of  an  irrigation  district  have 
the  right  to  use  the  bonds  issued  by  the 
district  at  their  par  value,  instead  of 
the  proceeds  thereof,  in  acquiring  or  con- 
structing irrigation  ditches  or  canals. 
Baltes  v.  Farmers'  Irr.  Dist.,  60  Neb. 
310,  83  N.  W.  83   (1900). 

3.  Washington  Statute. 

It  is  held  that  under  the  Washington 
Statute  (Sess.  Laws  1889—90,  p.  671; 
Laws  1895,  p.  432)  where  an  irrigation 
district  issues  bonds  for  the  purpose  of 
constructing  the  irrigation  system  un- 
der contract  with  a  person  to  pay  a  cer- 
tain sum  therefor,  who  is  unable  to 
carry  out  the  agreement,  the  board  of 
directors   may   deliver   the   same   to  the 


66 


Watee  and  Minekal  Cases. 


[Idaho 


state  shall  be  subject  to  taxation  for  state,  county,  school,  municipal, 
and  other  purposes  within  the  territorial  limits  of  the  authority  levying 
the  tax.  The  legislature,  therefore,  having  provided  for  the  organiza- 
tion of  an  irrigation  district,  and  giving  the  power  to  such  district 
to  levy  assessments  within  the  territorial  limits  of  the  same,  vested 
such  district  with  the  power  to  levy  assessments  for  such  local  im- 
provement, and  such  legislation  was  clearly  authorized  by  the  pro- 
visions of  the  Constitution.  This  question  is  fully  discussed  and  the 
authorities  reviewed  in  the  recent  work  of  Page  &  Jones  on  Taxation 
by  Assessment,  vol.  I,  c.  5. 

One  other  question  remains  for  consideration.  The  trial  court  found 
that  the  town  lots  in  Nampa  were  not  and  never  had  been  made  a  part 
of  the  Pioneer  Irrigation  District,  and  this  finding,  we  think,  is  fully 
supported  by  the  evidence.     The  record  shows  that  on  the  7th  day  of 


contractor  who  did  the  work.  Kincade 
v.  Witherop,  29  Wash.  10,  69  Pac.  399 
(1902). 

I.     Election  for  Bond  Issue. 
1.     Generally. 

The  various  statutes  governing  the 
organization  of  irrigation  districts  pro- 
vide for  an  election  to  determine  whether 
bonds  shall  be  issued  for  the  purpose  of 
constructing  the  necessary  irrigation 
canals  and  works  and  acquiring  the 
necessary  property  therefor,  and  for 
assessments  upon  all  lands  in  the  district 
of  a  tax  sufficient  to  pay  all  charges  and 
expenses  and  all  obligations  incurred  by 
virtue  of  the  issuance  of  any  bonds  by 
said  district.  See  Little  Walla  Walla 
Irr.  Dist.  v.  Preston,  46  Or.  5,  78  Pac. 
982    (1904). 

In  the  conducting  of  these  elections 
where  the  board  of  supervisors,  in  can- 
vassing the  votes,  merely  recite  the  vote 
which  had  been  cast,  without  making  any 
entry  in  the  record  declaring  the  results, 
this  is  not  in  compliance  with  the  re- 
quirement of  the  statute,  which  specifies 
that  the  result  of  the  election  shall  be 
"declared  and  entered  of  record."  Direc- 
tors of  Fallbrook  Irr.  Dist.  v.  Abila,  106 
Cal.  365,  39  Pac.  793    (1895). 

The  clerk  of  the  board  of  directors  of 
an  irrigation  district  cannot,  without 
direction   of  the   said  board,   amend  the 


record  of  the  canvassing  of  an  election  for 
the  issuance  of  bonds  by  inserting  therein 
of  his  own  accord  a  record  of  the  de- 
clared result  of  the  said  election.  Directors 
of  Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal. 
365,    39    Pac.    793    (1895). 

2.      Notice. 

Under  the  provisions  of  section  16  of 
the  Wright  Act  there  is  required  to  be 
given  a  notice  of  the  special  election  for 
the  purpose  of  issuing  bonds  and  this 
notice  may  be  given  under  the  provisions 
of  that  section  to  the  exclusion  of  the 
provisions  of  section  5  of  the  same  act, 
which  requires  a  posting  in  the  office  of 
the  board  of  a  general  notice.  Modesto 
Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237   (1891). 

Notice  of  election  called  for  the  pur- 
pose of  issuing  bonds  directing  the  open- 
ing and  closing  of  the  polls  either  earlier 
or  later  than  the  time  fixed  by  the 
statute,  and  allowing  persons  to  vote  at 
the  election  either  before  or  after  the 
time  fixed  by  statute,  renders  the  elec- 
tion nugatory.  Directors  of  Fallbrook 
Irr.  Dist.  v.  Abila,  106  Cal.  365,  39  Pac. 
793  (1895).  But  see  ante  II,  B,  8,  d, 
this   note. 

3.     Second    Election. 

Where  an  irrigation  district  which  has 
been   duly   organized,      in     constructing 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.    67 


June,  1902,  a  petition  was  filed  with  the  secretary  of  the  district  praying 
that  said  town  lots  in  the  town  of  Nampa  be  taken  into  and  included 
within  the  boundaries  of  the  district.  The  record  shows  the  petition 
was  referred  to  the  attorney  of  the  district.  He  made  his  report  thereon, 
and  thereafter  the  petition  was  granted,  and  the  territory  ordered  in- 
cluded within  said  district.  It  appears,  however,  and  counsel  for  ap- 
pellant admit,  that  the  notice  required  by  the  statute  of  the  presentation 
of  such  petition  was  not  given,  and  that  the  order  admitting  the  pro- 
posed territory  did  not  set  out  the  description  of  the  boundaries  as 
changed,  and  that  no  record  of  the  boundaries  as  changed  properly 
certified  was  filed  in  the  office  of  the  county  recorder.  Counsel  for 
.appellant   admit   that   these   defects    would   nullify   the   action    of   the 


works  as  laid  out  by  the  surveys,  maps, 
plans  and  specifications  previously  adopt- 
ed, has  exhausted  the  receipts  from  the 
sale  of  bonds  originally  issued,  and  the 
works  are  not  yet  completed,  the  said 
surveys,  maps,  etc.,  having  been  duly 
made  in  accordance  with  the  require- 
ments of  section  15  of  the  Idaho  Irriga- 
tion Act  (Sess.  Laws  1903,  p.  165),  it 
is  unnecessary  that  there  shall  be  a  new 
survey  and  additional  maps  and  plans 
before  another  election  can  be  called  for 
a  further  bond  issue  to  complete  the 
works.  Pioneer  Irr.  Dist.  v.  Campbell,  10 
Idaho  159,  77  Pac.  328   (1904). 

J.  Exclusion  of  Territory. 
Where  an  irrigation  district  has  been 
duly  organized,  the  subsequent  exclusion 
of  territory  therefrom  under  the  provis- 
ions of  the  statute  governing,  does  not 
affect  the  validity  of  bonds  theretofore 
issued.  Herring  v.  Modesto  Irr.  Dist., 
95  Fed.  705    (1899). 

K.      Procedure   to    Enforce. 
1.     Action    at    Law. 

In  an  action  at  law  to  recover  on  the 
bonds  of  an  irrigation  district  or  on  the 
interest  coupons  thereof,  the  question 
whether  the  district  has  derived  any 
benefit  from  the  improvement  is  im- 
material and  constitutes  no  defense. 
Herring  v.  Modesto  Irr.  Dist.,  95  Fed. 
705    (1899). 

Where  coupons  attached  to  the  bonds 
of  an   irrigation   district  issued  in  pur- 


suance of  the  California  Wright  Act 
(Stats.  1887,  p.  29),  made  payable  un- 
der that  law  at  the  office  of  the  treasur- 
er of  the  district,  are  not  paid  on  pre- 
sentation to  the  treasurer,  the  holder 
thereof  may  bring  suit  thereon  without 
a  demand  on  the  treasurer  of  the  county 
in  which  the  office  of  the  irrigation  dis- 
trict treasurer  is  situated,  notwith- 
standing the  provision  of  the  law  that  on 
the  failure  of  the  board  of  directors  of 
the  irrigation  district  to  levy  an  assess- 
ment to  meet  such  coupons,  it  becomes 
the  duty  of  the  county  officials  to  levy 
a  tax  therefor,  the  collection  of  which 
devolves  upon  the  county  treasurer. 
Shepard  v.  Tulare  Irr.  Dist.,  94  Fed.  1 
(1899),  affirmed  in  185  U.  S.  1,  46  L. 
Ed.  773,  22  Sup.  Ct.  531  (1902);  Herr- 
ing v.  Modesto  Irr.  Dist.,  95  Fed.  705 
(1899). 

Under  the  federal  rule,  the  procedure 
for  the  holder  of  irrigation  district  bonds 
which,  or  the  coupons  thereof,  are  not 
paid,  or  on  which  payment  is  refused,  is 
to  sue  at  law  and  by  judgment  of  the 
court  establish  the  validity  of  the  claim 
and  the  amount  due,  and  by  the  return 
of  an  ordinary  execution  ascertain  that 
no  property  of  the  district  can  be  found 
liable  to  such  execution  and  sufficient 
to  satisfy  the  judgment;  and  then  by 
proceedings  in  mandamus  compel  the 
levy  of  an  assessment  sufficient  to  meet 
the  obligation.     Shepard  v.  Tulare  Irr. 


68 


Watee  and  Mineral  Cases. 


[Idaho 


board  in  their  efforts  to  incorporate  and  include  within  said  district 
that  portion  of  Nampa  set  out  in  the  record;  and  we  believe  that 
the  admission  of  counsel  for  appellant  is  correct.  These  matters  are 
statutory  and  jurisdictional,  and  it  was  just  as  necessary  that  the  statute 
be  followed  in  these  jurisdictional  matters  in  changing  the  boundaries 
of  a  district,  as  creating  the  district  in  the  first  instance.  But  counsel  for 
appellant  contend  that  inasmuch  as  this  objection  has  not  been  raised 
until  long  years  after  the  district  was  incorporated,  and,  the  boundaries 
having  been  acquiesced  in  by  the  people  generally,  and  the  people  having 
accepted  the  assessments  levied  and  paid  the  same,  that  it  is  too  late  to 
now  raise  the  question. 

This  argument  is  based  upon  the  case  of  State  v.  Steunenberg,  5  Idaho 
1,  45  Pac.  462,  in  which  the  validity  of  the  incorporation  of  the  city 
of  Caldwell  was  involved,  and  in  which  case  the  court  held  that  the  in- 


Dist.,  94  Fed.  1  (1899),  affirmed  in  185 
U.  S.  1,  46  L.  Ed.  773,  22  Sup.  Ct.  531 
(1902).  See  Waite  v.  Santa  Cruz,  89 
Fed.  619  (1898);  Heine  v.  Levee  Com- 
missioners, 86  U.  S.  (19  Wall.)  655,  22 
L.  Ed.  223  (1873).  See  post  VI,  K,  2, 
b,  this  note. 

2.     Mandamus. 
a.      To    Compel     Payment. 

In  those  cases  where  the  bonds  and 
interest  coupons  of  an  irrigation  dis- 
trict have  not  been  refunded,  the  holders 
of  the  bonds  issued  are  entitled  to  have 
the  money  collected  for  the  payment  of 
the  interest  thereon  so  applied,  which 
right  cannot  be  defeated  by  a  transfer 
of  the  fund  to  other  purposes,  and  man- 
damus will  issue  to  compel  the  treasurer 
of  the  irrigation  district  to  pay  the 
interest  coupons  issued  by  such  district. 
Hewel  v.  Hogin,  3  Cal.  App.  248,  84 
Pac.  1002  (1906).  See  Mitchell  v.  Pat- 
terson, 120  Cal.  286,  52  Pac.  589  (1898)  ; 
Meyer  v.  Widber,  126  Cal.  252,  58  Pac. 
532  (1899)  ;  Rutherford  v.  Hudson  River 
Traction  Co.  (N.  J.  L.),  63  Atl.  84 
(1906). 

On  hearing  of  a  petition  for  mandamus 
to  compel  the  treasurer  to  pay  interest 
coupons,  where  the  law  makes  such  in- 
terest payable  out  of  a  fund  to  be  pro- 
vided by  assessments  by  the  board  ot 
directors,    evidence    that    an    assessment 


had  been  levied  for  the  purpose  of  paying 
interest  on  such  bonds  shows  that  money 
in  the  hands  of  the  treasurer  was  sub- 
ject to  the  payment  of  the  interest  cou- 
pons, and  that  parol  evidence  to  the 
effect  that  the  purpose  of  the  assessment 
was  different  from  that  declared  in  the 
resolution  adopted  by  the  board  when 
the  assessment  was  levied,  is  not  admis- 
sible. Hewel  v.  Hogin,  3  Cal.  App.  248, 
84  Pac.  1002    (1906). 

b.     To    Compel    Levy    of   Assessment. 

Under  the  procedure  in  the  federal 
courts,  before  mandamus  to  compel  the 
levy  of  an  assessment  to  pay  bonds  or 
interest  can  be  maintained,  the  holder 
of  the  bonds  is  required  to  reduce  his 
bonds  or  coupons  to  judgment  and  have 
execution  returned.  See  Shepard  v. 
Tulare  Irr.  Dist.,  94  Fed.  1  (1899). 
affirmed  in  185  U.  S.  1,  46  L.  Ed.  773, 
22  Sup.  Ct.  531  (1902);  Herring  v. 
Modesto  Irr.  Dist.,  95  Fed.  705  (1899). 
See  ante  VI,  K,  1,  this  note. 

But  in  the  state  courts  it  has  been 
held  that  mandamus  will  lie  to  enforce 
levy  of  an  assessment  for  the  payment 
of  interest  coupons  without  first  reduc- 
ing them  to  judgment.  Shinbone  v. 
Randolph   County,   56  Ala.    183    (1876). 

Mandamus  lies  against  the  officers  of 
an    irrigation    district,    organized   under 


1909]  Oregon  Shokt  Line  R.  Co.  v.  Pioneer  Irrigation  Dist. 


69 


corporation  of  the  city  had  been  acquiesced  in  by  the  people  expressed 
in  two  elections  covering  a  period  of  three  years;  and  that  new  duties 
and  obligations  had  been  assumed  by  the  corporation,  and  that  during 
such  time  no  citizen  or  taxpayer  had  ever  in  any  way  questioned  the 
validity  of  such  organization.  That  case,  however,  is  very  different  from 
the  one  now  under  consideration.  In  that  case  the  citizens  of  the  city 
participated  in  the  municipal  affairs  of  the  city  under  such  organization; 
and  by  so  participating  therein  clearly  recognized  the  validity  of  such 
incorporation  and  at  no  time  questioned  the  same.  In  the  case  under 
consideration,  however,  the  railroad  company  did  not  participate  in 
recognizing  the  validity  of  the  change  in  the  boundaries  of  such  dis- 
trict by  incorporating  therein  the  town  lots  of  the  city  of  Nampa,  for 


the  California  Wright  Act  (Laws  1887, 
p.  29),  at  the  suit  of  a  bondholder  who 
has  recovered  judgment  on  the  bonds,  to 
compel  the  officers  of  the  district  to  levy 
an  assessment  against  the  property  in 
the  district  to  raise  money  from  which 
to  pay  the  judgment.  Marre  v.  San 
Jacinto  &  P.  V.  Irr.  Dist.,  131  Fed. 
780  (1904).  See  Heine  v.  Levee  Commis- 
sioners, 86  U.  S.  (19  Wall.)  655,  22  L. 
Ed.  223  (1873)  ;  Holt  County  v.  National 
Life  Ins.  Co.,  80  Fed.  686  25  C.  C.  A. 
469,  475    (1897). 

This  is  on  the  general  principle  that 
where  the  law  provides  that  a  tax  shall 
be  levied  to  pay  corporation  bonds, 
mandamus  after  judgment,  to  compel  the 
levying  of  the  tax,  is  the  appropriate 
remedy  of  the  bond  holder.  See  United 
States  ex  rel.  Von  Hoffman  v.  Quincy, 
71  U.  S.  (4  Wall.)  535,  18  L.  Ed.  403 
(1866);  United  States  ex  rel.  Riggs  v. 
Johnson  County,  73  U.  S.  (6  Wall.) 
166,  18  L.  Ed.  768  (1867);  Heine  v. 
Board  of  Levee  Commissioners,  86  U.  S. 
(19  Wall.)    655,  22  L.  Ed.  223    (1873). 

L.     Form  of. 

Under  the  requirement  of  section  15 
of  the  California  Wright  Act,  bonds 
drawn  so  as  to  be  payable  in  installments 
are  in  proper  form.  Central  Irr. 
Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac. 
825    (1889). 

The  bonds  issued  by  an  irrigation 
district  shall  be  in  form  such  that  they 


are  payable  in  installments,  of  such 
percentage  each  year  as  is  designated 
in  the  statute.  In  re  Madera  Irr.  Dist., 
92  Cal.  296,  28  Pac.  272,  675,  27  Am. 
State  Rep.  106,  14  L.  R.  A.  755  (1891). 

Bonds  do  not  fail  to  comply  with  the 
statutory  requirement  that  they  shall  be 
"negotiable  in  form,"  by  making  the  pay- 
ment of  principal  payable  only  upon  sur- 
render of  the  coupons;  the  insertion  in 
the  instrument  of  a  stipulation  for  thia 
condition,  which  would  in  any  event  be 
implied,  does  not  affect  its  negotiability. 
Stowell  v.  Rialto  Irr.  Dist.,  155  Cal.  215, 
100  Pac.  248  (1909).  See  Humboldt 
Township  v.  Ling,  92  U.  S.  643,  23  L. 
Ed.  752  (1875);  Franks  v.  Wessels, 
64  N.  Y.  155   (1876). 

Under  the  Washington  Statute  (Laws 
1889-90,  p.  671;  Laws  1895,  p.  432), 
which  requires  irrigation  district  bonds 
to  be  negotiable  in  form,  bonds  reciting 
that  they  and  the  interest  thereon  are 
to  be  paid  by  revenue  derived  from  an 
annual  tax  upon  the  real  property  of  the 
district,  are  negotiable,  though  reciting 
that  they  are  payable  from  a  particular 
fund.  Kincade  v.  Witherop,  29  Wash. 
10,  69  Pac.  399  (1902).  See  Mercer 
County  v.  Hackett,  68  U.  S.  (1  Wall.) 
83,  17  L.  Ed.  548    (1863). 

M.     Interest  on. 

The  interest  on  the  bonds  of  an  irriga- 
tion district  must  be  such  as  is  provided 
by  the  act  under  which  the  district  is 


70 


Water  and  Mineral  Cases. 


[Idaho 


the  reason  that  no  assessment  was  made  against  such  company  during 
the  years  after  the  boundary  lines  were  so  changed  as  to  include  therein 
such  lots  until  the  assessment  made  in  1905  which  is  under  consider- 
ation in  this  case.  The  railroad  company  was  not  called  upon  to  chal- 
lenge the  validity  of  the  boundary  of  such  district  by  including  such  lots 
until  the  district  had  taken  some  action  against  such  lots  which  in  some 
way  affected  the  railway  company ;  and  this  did  not  occur  until  the  year 
1905.  The  railway  company  was  not  in  a  position  to  question  the 
validity  of  the  change  in  the  boundaries  of  such  district  until  such  time. 

For  these  reasons,  we  hold  that  the  lower  court  committed  no  error 
in  holding  that  the  town  lots  described  in  the  complaint,  as  being  situ- 
ated within  the  town  of  Nampa,  were  not  at  such  time,  and  have  never 
been,  included  within  the  boundary  lines  of  such  irrigation  district. 


organized,  or,  in  the  absence  of  any  pro- 
vision by  that  act,  such  as  is  provided  by 
the  general  statutes  of  the  state.  No  in- 
terest, however,  is  collectible  against  an 
irrigation  district  or  the  treasurer  there- 
of (see  ante  V,  D,  this  note)  where  no 
provisions  for  such  interest  are  made. 
Hewel  v.  Hogin,  3  Cal.  App.  248,  84  Pac. 
1002    (1906). 

Irrigation  bonds  issued  under  Washing- 
ton Irrigation  District  Law  (Laws  1889- 
90,  p.  671;  Laws  1895,  p.  432),  sold  to 
purchasers  under  condition  that  they 
were  to  draw  interest  from  payment  of 
the  purchase  money,  being  dated  July  1, 
and  drawing  interest  therefrom,  though 
it  was  not  until  after  July  that  the 
purchaser  paid  according  to  his  contract, 
when  he  paid  three  hundred  dollars  more 
than  he  was  obliged  to  under  his  agree- 
ment to  purchase  to  make  up  for  the 
accumulated  interest,  were  held  in  sub- 
stantial compliance  with  the  provisions 
of  the  statute.  Kincade  v.  Witherop, 
29  Wash.   10,  69  Pac.  399    (1902). 

N.  Issuance  of. 
The  bonds  of  an  irrigation  district 
must  be  issued  in  conformity  with  the 
act  by  which  they  are  authorized 
(Wright  v.  East  Riverside  Irr.  Dist., 
138  Fed.  313— 1905) }  and  for  the  pur- 
poses only  for  which  authorized.  Marre  v. 
San  Jacinto  &  P.  V.  R.  Irr.  Dist.,  131  Fed. 
780  (1904)  ;  Leeman  v.  Perris  Irr.  Dist., 


140  Cal.  540,  74  Pac.  24  (1903);  Mer- 
chants' Nat.  Bank  v.  Escondido  Irr.  Dist., 
144  Cal.  329,  77  Pac.  937  (1904)  ;  Bos- 
kowitz  v.  Thompson,  144  Cal.  724,  78 
Pac.  290  (1904);  Pioneer  Irr.  Dist.  v. 
Campbell,  10  Idaho  159,  77  Pac.  328 
(1904). 

The  power  of  the  irrigation  district,  as 
a  public  corporation  to  issue  bonds,  must 
be  exercised  strictly  in  pursuance  of  the 
manner  prescribed  by  statute.  There  is 
no  doubt  regarding  it  being  within  the 
power  of  the  state  to  prescribe  the  man- 
ner of  issuing  and  the  form  in  which 
such  bonds  shall  be  issued  and  executed 
in  order  to  bind  the  public  for  their  pay- 
ment; and  if  not  so  issued  and  executed 
they  create  no  legal  liability.  Anthony 
v.  County  of  Jasper,  101  U.  S.  693,  25 
L.  Ed.  1005  (1879),  distinguishing 
Town  of  Weyauwega  v.  Ayling,  99  U.  S. 
112,  25  L.  Ed.  470  (1878);  Stowell  v. 
Rialto  Irr.  Dist.,  155  Cal.  215,  222,  100 
Pac.  248  (1909).  See  148  U.  S.  395,  37 
L.  Ed.  495,  13  Sup.  a.  638   (1893). 

Authority  to  issue  bonds  is  wholly  inde- 
pendent of  the  source  of  supplying  of  water 
for  the  district  and  the  board  of  direct- 
ors may  change  plans  for  obtaining  its 
water  and  obtain  it  from  another  source 
when  they  find  it  to  the  advantage  of 
the  district  to  do  so,  without  in  any  way 
impairing  the  validity  of  the  bonds  there- 
tofore voted  and  ordered  issued.  Modesto 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     71 


The  judgment  of  the  district  court  is  affirmed  as  to  the  town  lots  in  the 
town  of  Nampa  not  having  been  included  within  said  district  and  made 
subject  to  assessments,  and  is  reversed  as  to  all  other  parts  of  said  judg- 
ment; and  a  new  trial  is  ordered.    Costs  awarded  to  appellant. 

AILSHIE,  J.,  concurs. 

SULLIVAN,  C.  J.  (dissenting).  I  am  unable  to  concur  in  the  conclu- 
sion reached  by  my  associates  except  in  so  far  as  it  affirms  the  judg- 
ment of  the  district  court  as  to  the  town  lots  in  the  town  in  Nampa.  I 
do  not  think  it  was  ever  contemplated  by  said  district  irrigation  act  that 
a  railroad  right  of  way  could  ever  be  benefited  by  irrigation  or  that  such 


Irr.  Co.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237   (1891). 

The  matter  of  the  issuance  of  bonds 
may  be  considered  and  determined  at  a 
regularly  adjourned  meeting,  the  same 
as  if  it  had  been  presented  and  deter- 
mined on  the  day  fixed  for  the  regular 
meeting.  Directors  of  Fallbrook  Irr. 
Dist.  v.  Abila,  106  Cal.  365,  39  Pac.  793 
(1895). 

A  resolution  of  a  board  of  directors 
for  the  issuance  of  bonds  for  a  specified 
amount  may  be  rescinded  by  such  board. 
Directors  of  Fallbrook  Irr.  Dist.  v.  Abila, 
106  Cal.  365,  39  Pac.  793   (1895). 

A  contract  by  the  board  of  directors  of 
an  irrigation  district  whereby  it  issues 
all  its  bonds  in  consideration  of  water" 
certificates  from  a  water  company  which 
has  no  water  plant  within  the  district, 
on  an  executory  promise  in  the  future  to 
lease  water  to  the  amount  specified  in  the 
certificates  to  the  district  at  a  fixed 
rental,  is  void.  Leeman  v.  Perris  Irr. 
Dist.,   140  Cal.   540,  74  Pac.  24    (1903). 

Irrigation  bonds  issued  to  a  contractor 
at  ninety  per  cent,  of  their  face  value 
in  payment  for  construction  work  done 
by  him,  are  illegally  issued  and  do  not 
constitute  a  valid  obligation  against  the 
district  in  his  hands,  and  an  injunction 
will  lie  to  enjoin  the  collection  of  an 
assessment  for  interest  upon  such  bonds. 
Hughson  v.  Crane,  115  Cal.  404,  47  Pac. 
120    (1896). 


As  to  recovery  of  the  consideration 
for  such  bonds,  see  ante  VI,  C,  2;  post 
VIII,  C,  1,  this  note. 

The  directors  of  an  irrigation  district' 
have  no  authority  to  appropriate  the 
bonds  which  the  electors  have  voted  to 
issue  for  the  construction  of  an  irriga- 
tion works  to  the  payment  of  salaries  or 
expenditures  incurred  in  the  .management 
of  the  property.  Hughson  v.  Crane,  115 
Cal.  404,  47  Pac.  120    (1896). 

O.      Lien    on    Lands. 

Under  the  various  irrigation  district 
acts,  the  bonds  issued  by  the  district  and 
the  interest  payable  thereon  are  made 
a  lien  upon  the  lands  in  the  irrigation 
district.  Such  lien  is  purely  statutory 
and  must  be  strictly  pursued.  Boskowitz 
v.  Thompson,  144  Cal.  724,  78  Pac.  290 
(1904). 

It  has  been  said  that  under  the  Cali- 
fornia Statute  (Stats.  1887,  p.  27,  and 
Laws  1891,  p.  149,  §  122)  creating  irri- 
gation districts  and  authorizing  a  board 
of  directors  to  levy  an  assessment  to 
pay  interest  on  bonds,  in  an  action  to 
confirm  the  levy  of  an  assessment  the 
court  cannot  declare  that  the  bonds  were 
a  lien  on  the  land  or  interfere  with  the 
discretion  of  the  board  in  determining 
the  amount  of  assessment  to  be  raised 
except  in  case  of  abuse  of  discretion. 
Boskowitz  v.  Thompson,  144  Cal.  724, 
78  Pac.  290    (1904). 


72 


Watee  and  Mineral  Cases. 


[Idaho 


right  of  way  would  ever  become  susceptible  of  irrigation,  from  a  system 
of  works  that  might  be  used  by  an  irrigation  district  for  irrigating  the 
lands  in  the  district.  The  first  section  of  said  act  (Laws  1899,  p.  408) 
refers  to  lands  susceptible  of  "one  mode"  of  irrigation,  and  was  never  in- 
tended to  include  lands,  in  assessing  benefits,  that  were  never  intended 
to  be  irrigated. 

The  record,  to  my  mind,  clearly  shows  that  those  who  organized  this 
district  and  the  governing  authorities  of  the  district  for  at  least  three 
years  after  it  was  organized,  did  not  consider  the  railroad  right  of  way 
as  land  coming  within  the  terms  of  said  district  irrigation  act  as  being 
lands  susceptible  of  irrigation.  As  no  benefits  were  ever  assessed  against 
said  right  of  way,  the  railroad  company  has  not  had  its  day  in  court 


A  landowner  who  has,  in  accordance 
with  the  provisions  of  the  law  under 
which  the  district  is  organized,  waived 
his  right  to  the  use  of  water  from  the 
district,  is  not  liable  on  the  bonds  issued 
by  the  district,  and  assessments  to  pay 
interest  or  principal  of  such  bonds  will 
not  be  a  lien  upon  his  lands.  Nampa 
&  M.  Irr.  Dist.  v.  Brose,  11  Idaho  474, 
83  Pac.  499  (1905). 
P.  Supplying  Water  for  Use  Outside^ 
of  District. 

Where  an  irrigation  district  organized 
in  accordance  with  the  provisions  of  the 
Idaho  Statute  (Laws  1899,  p.  408,  as 
amended  by  Laws  1901,  p.  191)  has  issued 
bonds  for  the  construction  or  purchase 
of  the  canal  system  and  works,  the  fact 
that  said  system,  when  completed,  will 
supply  and  water  lands  outside  of  the 
district,  does  not  render  the  bonds  issued 
by  the  district  invalid.  Settlers'  Irr. 
Dist.,  v.  Settlers'  Canal  Co.,  14  Idaho  504 
94  Pac.  829  (1908).  As  to  supplying 
water  to  land  outside  of  the  district,  see 
post  VIII,  B,  2,  this  note. 
Q.     Term  of. 

Where  the  statute  designates  the  term 
for  which  the  bonds  of  an  irrigation 
district  shall  run,  those  bonds  in  which 
payment  is  provided  for  either  at  the 
expiration  of  an  earlier  period,  as  where 
the  statute  authorizes  bonds  payable  in 
not  less  than  ten  years  from  date,  and 
bonds  were  payable  eleven  days  less  than 


ten  years  (Wright  v.  East  Riverside 
Irr.  Dist.,  138  Fed.  313—1905;  Peoples 
Bank  v.  School  Dist.,  3  N.  Dak.  496, 
57  N.  W.  787—1893).  See  Brownell  v. 
Town  of  Greenwich,  114  N.  Y.  518,  22 
N.  E.  24—1889;  Hoag  v.  Town  of  Green- 
wich, 133  N.  Y.  152,  30  N.  E.  842— 1892 ; 
Proctor  v.  Town  of  Greenwich,  92  N.  Y. 
602 — 1883)  ;  or  a  longer  term  (Brenham 
v.  German  American  Bk.,  144  U.  S. 
173,  188,  36  L.  Ed.  390,  12  Sup.  Ct. 
975—1892;  Barnum  v.  Okoloma,  148  U.  S. 
393,  37  L.  Ed.  495,  13  Sup.  Ct.  638 
— 1893,  approving  and  following  Woodrie 
v.  Okoloma,  57  Miss.  806—1880)  than 
that  authorized  by  statute,  will  be  in- 
valid. See  Stowell  v.  Rlalto  Irr.  Dist., 
155  Cal.  215,  100  Pac.  248   (1909). 

Where  the  bonds  of  an  irrigation  dis- 
trict are  antedated  so  as  to  make  them 
fall  due  within  a  shorter  time  than 
that  prescribed  by  the  statute,  they  are 
void  (Gilbert,  J.,  dissenting).  Wright 
v.  East  Riverside  Irr.  Dist.,  138  Fed. 
313    (1905).     See  ante  VI,  F,  this  note. 

VII.  Assessments. 
A.  As  to,  Generally. 
Whenever  a  local  improvement  is  au- 
thorized, it  is  for  the  legislature  to  pre- 
scribe a  way  in  which  the  means  to  meet 
its  cost  shall  be  raised,  whether  by  gen- 
eral taxation  or  by  levying  the  burden 
upon  the  district  especially  benefited  by 
the  expenditure.  Mobile  County  v.  Kim- 
ball,  102  U.  S.  691,  704,  22  L.  Ed.  238 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     73 

and  had  no  opportunity  to  contest  an  assessment  of  benefits,  for  the 
reason  that  the  board  of  directors  never  assessed  any  benefits  to  said  rail- 
road right  of  way;  but  assessed  each  40-acre  tract,  across  which  said 
right  of  way  extends,  to  the  party  holding  the  legal  title  thereto  at  six 
dollars  per  acre.  As  said  railroad  company  has  not  the  legal  title  to  said 
tracts  and  owns  only  an  easement  therein,  and  that  easement  not  having 
been  assessed,  the  company  has  not  had  its  day  in  court  in  so  far  as  an 
assessment  of  benefits  is  concerned.  The  judgment  of  the  district  court 
should  be  affirmed. 

On    Rehearing. 

AILSHIE,  J.     A  petition  for  rehearing  has  been  filed  in  which  com- 
plaint is  made  that  the  court  did  not  cite  or  review  the  authorities  cited 


(18S0)  ;  Hogar  v.  Reclamation  Dist.,  Ill 
U.  S.  701,  28  L.  Ed.  569,  4  Sup.  Ct.  663 
(1883);  Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379    (1888). 

See  ante  I,  C,  1,  this  note. 

Those  clauses  of  the  Constitution 
which  provide  that  taxation  shall  be 
equal  and  uniform,  and  which  prescribe 
the  mode  of  assessment,  and  the  persons 
by  whom  it  shall  be  made,  and  that  all 
property  shall  be  taxed,  have  no  applica- 
tion to  assessments  levied  for  local  im- 
provements. Hagar  v.  Supervisors  of 
Yolo  County,  47  Cal.  222  (1874);  Tur- 
lock Irr.  Dist.  v.  Williams,  76  Cal.  360, 
18  Pac.  379   (1888). 

3.  As  to  Levy  by  Board  of  Directors. 
1.  Generally. 
The  board  of  directors  of  an  irrigation 
district  have  power  to  levy  an  assess- 
ment upon  the  lands  and  other  property- 
provided  within  an  irrigation  district  for 
the  purpose  of  raising  money  for  current 
expenses  to  pay  the  cost  of  construction 
or  acquisition  of  a  water  system  and  to 
pay  the  annual  interest  on  bonds  and  to 
meet  the  bonds  at  maturity.  Fallbrook 
Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  41 
L.  Ed.  369,  17  Sup.  Ct.  56  (1896);  Tre- 
gea  v.  Owens,  94  Cal.  317,  29  Pac.  643 
(1892)  ;  Quint  v.  Hoffman,  103  Cal.  506, 
37  Pac.  514  (1894)  ;  Woodruff  v.  Perry, 
103  Cal.  611,  37  Pac.  526  (1894)  ;  City 
of  San  Diego  v.  Linda  Vista  Irr.  Dist., 


108  Cal.  189,  41  Pac.  291,  35  L.  R.  A. 
33  (1895);  Cooper  v.  Miller,  113  Cal. 
238,  45  Pac.  325  (1896);  Lahman  v. 
Hatch,  124  Cal.  1,  56  Pac.  621  (1899); 
Merchants'  Nat.  Bank  v.  Escondido  Irr. 
Dist.,  144  Cal.  329,  77  Pac.  937  ( 1904)  ; 
Portneuf  Irr.  Co.  Limited  v.  Budge,  16 
Idaho  116,  100  Pac.  1046  (1909); 
Knowles  v.  New  Sweden  Irr.  Dist.,  16 
Idaho  217,  101  Pac.  81  (1908). 

But  under  the  Idaho  Laws  before  an 
irrigation  district  can  levy  an  assess- 
ment for  any  purpose,  it  must  be  in  a 
position  to  render  some  benefit.  Knowles 
v.  New  Sweden  Irr.  Dist.,  16  Idaho  217, 
101  Pac.  81    (1908). 

2.     California  Act. 

Under  the  California  Wright  Act,  an 
assessment  levied  upon  the  property 
within  an  irrigation  district  organized' 
under  that  act  is  distinct  from  a  tax 
and  is  not  subject  to  the  constitutional 
provisions  respecting  taxation.  In  re 
Madera  Irr.  Dist.,  92  Cal.  296,  28  Pac. 
272,  675,  27  Am.  St.  Rep.  106,  14  L.  R. 
A.  755  (1891);  Tregea  v.  Owens,  94 
Cal.  317,  29  Pac.  643   (1892). 

Under  this  act  it  is  not  necessary  to 
the  validity  of  an  assessment  that  the 
methods  adopted  for  the  levy  thereof 
and  for  the  collection  should  be  assimi- 
lated to,  and  follow  exactly  the  mode 
provided  in  the  state  constitution  for 
the   assessment   and   collection   of   taxes 


74 


Water  and  Mineral  Cases. 


[Idaho 


in  appellant's  brief-  The  court  has  not  the  time,  nor  does  it  often  deem 
it  necessary  to  review  at  length  in  written  opinions  the  authorities  cited 
by  counsel.  Authorities  are  only  useful  in  so  far  as  they  elucidate  the 
reasons  for  a  given  rule  and  make  plain  the  justice  such  rule  accom- 
plishes. Without  stating  the  several  propositions  advanced  by  appel- 
lant's petition,  we  will  refer  briefly  to  the  more  prominent  ones. 

First.  It  must  be  admitted  as  fully  settled  that  a  railroad  right  of  way 
acquired  under  act  of  Congress  of  March  3,  1875,  c.  152,  18  Stat.  482 
(U.  S.  Comp.  St.  1901,  p.  1568),  cannot  be  used  or  alienated  for  any 
other  purposes  than  those  named  in  the  grant,  and  upon  a  cessation  of 
such  use  the  right  granted  reverts  to  the  owner  of  the  fee.  N.  P.  Ry. 
Co.  v.  Townsend,  190  U.  S.  267,  23  Sup.  Ct.  671,  47  L.  Ed.  1044.     If, 


for  general  state  purposes.  Turloek  Irr. 
Dist.  v.  Williams,  76  Cal.  360,  18  Pac. 
379    (1888). 

There  is  a  due  process  of  law  and 
equal  protection  to  all  when  the  course 
pursued  for  the  assessment  and  collection 
of  taxes  is  that  customarily  followed  in 
the  state  and  when  the  party  charged  in 
his  property  has  an  opportunity  to  be 
heard.  Fallbrook  Irr.  Dist.  v.  Bradley, 
164  U.  S.  112,  41  L.  Ed.  369,  17  Sup.  Ct. 
56  (1896). 

The  board  of  directors  of  an  irrigation 
district  in  levying  an  assessment  to  pay 
interest  on  bonds  under  the  provision  of 
the  Wright  Act  and  amendments  thereto 
(Stats.  1887,  p.  27;  1891,  p.  149,  §  122) 
have  a  discretion  as  to  the  amount  of  the 
levy,  which  the  courts  cannot  interfere 
with,  except  in  case  of  abuse  of  discre- 
tion. Boskowitz  v.  Thompson,  144  Cal. 
724,  78  Pac.  290  (1904).  See  post  VII, 
D,  this  note. 

3.     Idaho  Act. 

Under  the  Idaho  Irrigation  District 
Laws  (Sess.  Laws  1899,  p.  408),  and  the 
acts  amendatory  thereof,  an  irrigation 
district  has  power  and  authority  to  levy 
and  collect  assessments  against  the  land 
within  the  district  according  to  benefits 
received  (Portneuf  Irr.  Co.  Limited  v. 
Budge,  16  Idaho  116,  100  Pac.  1046— 
1909)  ;  but  only  when  in  a  position  to 
render  some  benefit.     Knowles    v.    New 


Sweden    Irr.    Dist.,    16    Idaho    217,    101 
Pac.  81    (1908). 

Under  this  act  where  the  record  shows 
that  the  board  of  directors,  in  levying 
an  assessment  for  maintenance  and  to 
pay  tha  bonded  indebtedness  of  an  irri- 
gation district,  substantially  complied 
with  the  statute,  and  the  assessment  roll 
is  made  up  in  substantial  compliance 
with  the  statute,  the  assessment  thus 
levied  will  be  upheld  if  the  description 
of  the  property  is  sufficient  to  give  the 
landowner  notice  that  such  property  is 
burdened  with  such  assessment.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16   Idaho  578,   102   Pac.  904    (1909). 

C.  As  to  Neglect  or  Refusal  to  Levy. 
1.  Duty  of  County  Board. 
Under  the  various  irrigation  district 
laws,  it  is  made  the  duty  of  the  board 
of  directors  of  an  irrigation  district  to 
levy  assessments  to  raise  money  where- 
with to  meet  the  current  expenses  of  op- 
erating the  district,  to  pay  the  interest 
on  the  bonds,  and  for  retiring  the  bonds 
of  the  district  at  maturity;  and  where 
such  directors  neglect  or  refuse  to  make 
such  levy  or  levies,  it  is  made  the  duty 
of  the  county  board  of  supervisors  or 
county  commissioners  of  the  county  in 
which  the  district  has  its  office  to  cause 
an  assessment  roll  for  the  district  to  be 
prepared,  and  to  make  the  levy  of  an 
assessment  to  meet  the  requirements  of 
the    district.      Board    of    Supervisors    of 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     75 

therefore,  a  sale  should  be  made  of  the  railroad  company's  right  of  way, 
the  purchaser  would  acquire  only  such  rights  and  interest  as  the  com- 
pany possessed,  and  would  be  limited  to  the  same  conditions  and  restric- 
tions as  to  use  as  were  imposed  by  the  original  grant.  A  purchaser  at 
judicial  sale  under  decree  of  court  can  acquire  only  such  title  and  right  as 
the  defendant  in  the  action  has.  Nelson  Bennett  Co.  v.  Twin  Falls  Land 
&  Water  Co.,  14  Idaho  5,  93  Pac.  789. 

Second.  Assessments  by  irrigation  districts  are  made  on  the  land 
itself — the  soil — irrespective  of  the  use.  The  decisive  question  is  not 
the  use  to  which  an  owner  is  going  to  devote  his  land,  but,  is  it  suscep- 
tible of  irrigation  from  the  proposed  system  of  irrigation?  For  such 
purposes    an   assessment   against   the   land    itself   as   belonging   to   the 


Riverside  County  v.  Thompson,  122  Fed 
860  (1903);  Nevada  Nat.  Bank  v.  Kern 
County  Supervisors,  5  Cal.  App.  638,  91 
Pac.  192  (1907)  ;  State  ex  rel.  Witherop 
v.  Brown,  19  Wash.  383,  53  Pac.  548 
(1898). 

In  those  cases  where  the  county  board 
is  required  to  make  a  levy  on  failure  or 
refusal  of  the  board  of  directors  of  irri- 
gation district  to  make  the  same,  such 
county  board  may  properly  include  the 
expenses  of  the  levy  of  the  assessment 
therein.  Nevada  Nat.  Bank  v.  Kern 
County  Supervisors,  5  Cal.  App.  638,  91 
Pac.  192   (1907). 

2.     Mandamus. 

Mandamus  lies  to  compel  the  county 
board  of  supervisors  or  county  commis- 
sioners to  levy  an  assessment  to  pay  the 
annual  interest  on  bonds  of  an  irrigation 
district  where  the  board  of  directors  of 
such  district  neglect  or  refuse  to  levy 
such  an  assessment.  Board  of  Super- 
visors of  Riverside  County  v.  Thompson, 
122  Fed.  860  (1903)  ;  Nevada  Nat.  Bank 
v.  Kern  County  Supervisors,  5  Cal. 
App.  638,  91  Pac.  122  (1907);  State  ex 
rel.  Witherop  v.  Brown,  19  Wash.  383, 
53  Pac.  548  (1898).  And  no  previous 
demand  on  the  county  board  is  necessary 
before  commencing  such  proceedings. 
Board  of  Supervisors  of  Riverside 
County  v.  Thompson,  122  Fed.  860 
(1903).  The  writ  is  properly  awarded 
to   compel   the   supervisors   to   make  the 


assessment,  although  the  petitioner's  de- 
mand is  represented  by  a  judgment 
against  the  irrigation  district  on  its 
bonds.  Nevada  Nat.  Bank  v.  Kern 
County  Supervisors,  5  Cal.  App.  638,  91 
Pac.  192    (1907). 

D.    Annual  to  Pay  Interest,  Discretion. 

The  board  of  directors  are  empowered 
by  section  22  of  the  Wright  Act  to  levy 
an  assessment  sufficient  to  raise  the  an- 
nual interest  on  the  outstanding  bonds, 
and  while  the  authority  given  is  limited 
to  provide  for  the  interest  for  the  bonds 
that  are  outstanding  at  the  time  of  thet 
levy,  it  does  not  require  that  the  amount 
of  the  assessment  shall  be  the  exact 
amount  of  the  interest;  a  discretion  in 
determining  how  great  an  assessment' 
will  be  sufficient  to  raise  the  annual  in- 
terest is  lodged  in  the  board  of  directors, 
and,  unless  it  can  be  seen  that  they  have 
abused  this  discretion,  courts  will  not 
interfere  with  their  action  in  the  prem- 
ises. Hughson  v.  Crane,  115  Cal.  404, 
47  Pac.  120  (1896);  Escondido  High 
School  Dist.  v.  Escondido  Seminary,  130 
Cal.  128,  133,  62  Pac.  401  (1900);  Bos- 
kowitz  v.  Thompson,  144  Cal.  724,  78 
Pac.  290  (1904);  Lincoln  &  Dawson 
County  Irr.  Dist.  v.  McNeal,  60  Neb.  621, 
83  N.  W.  847    (1900). 

See  post  VII,  J,  this  note. 

But  an  injunction  will  lie  to  prevent 
the  enforcement  of  an  excessive  assess- 
ment   where    the    disparity    between   the 


76 


Watee  and  Mineral  Cases. 


[Idaho 


owner  of  the  fee  or  paramount  title  covers  all  special  and  limited  rights, 
interest,  and  easements  in  the  land.  While  it  is  generally  held  that 
land  dedicated  to  a  public  use  cannot  while  so  held  and  used  be  as- 
sessed for  a  similar  public  use  or  necessity,  this  does  not  apply  where 
the  ownership  of  the  easement,  right,  or  franchise  is  private,  and  the 
use  only  to  which  it  is  applied  is  quasi  public.  In  such  case  the  use 
can  be  as  readily  carried  out  and  enjoyed  by  the  public  with  the 
ownership  in  one  corporation,  organized  and  created  for  such  ownership 
and  management,  as  in  the  hands  of  another.  Where  the  ownership  is  in 
the  public,  a  very  different  question  arises. 

Third.    As  to  whether  a  sale  of  appellant's  right  of  way  takes  only 
appellant's  easement  and  right  or  the  entire  fee  and  reversionary  right 


amount  of  the  assessment  and  the  an- 
nual interest  is  such  as  to  make  it  appear 
that  the  action  of  the  board  was  im- 
proper. Hughson  v.  Crane,  115  Cal.  404, 
47  Pac.  120  (189G). 

In  an  action  to  enjoin  the  collector 
of  an  irrigation  district  from  the  collec- 
tion of  an  assessment  levied  to  pay  the 
interest  on  bonds  illegally  issued,  neither 
the  irrigation  district  nor  its  agent  for 
the  sale  of  the  bonds,  nor  the  holder  of 
any  of  the  bonds  thus  disposed  of,  are 
necessary  parties.  Hughson  v.  Crane, 
115  Cal.  404,  47  Pac.  120  (1896). 

E.      Basis    of    Assessment. 

An  assessment  levied  under  the  Cali- 
fornia Irrigation  Act  is  levied  according 
to  the  value  of  the  land,  and  not  accord- 
ing to  the  amount  of  benefits  received 
by  the  respective  parcels,  to  pay  for  a 
public  improvement  in  an  irrigation  dis- 
trict, is  within  the  inherent  power  of 
taxation,  which  is  not  limited  to  benefits 
received.  Lent  v.  Tillson,  72  Cal.  404, 
429,  14  Pac.  71  (1887);  In  re  Madera 
Irr.  Dist.,  92  Cal.  296,  307,  28  Pac.  272, 
675,  27  Am.  St.  Rep.  106,  14  L.  R.  A. 
755    (1891). 

While  the  benefit  to  the  land  is  as- 
sumed as  the  basis  of  the  assessment, 
such  benefit  is  not  the  true  source  of 
the  power  of  the  levy;  even  though  the 
land  is  not  susceptible  of  irrigation  it 
may  be  benefited  by  the  improvement, 
and    should   bear    its    proportion   of   the 


burden  upon  the  same  principle  that 
land  in  a  city  which  can  make  no  use 
of  a  sewer  or  other  street  improvement 
is  nevertheless  deemed  to  receive  a  bene- 
fit from  its  construction  and  is  required 
to  pay  a  portion  of  its  cost.  In  re  Ma- 
dera Irr.  Dist.,  92  Cal.  296,  28  Pac.  272, 
675,  27  Am.  St.  Rep.  106,  14  L.  R.  A. 
755    (1891). 

The  California  doctrine  on  the  above 
point  seems  to  be  opposed  to  the  current 
of  American  cases,  according  to  which 
local  assessments  for  public  improve- 
ments can  be  levied  only  when  the  im- 
provements will  clearly  confer  benefits 
on  the  property  assessed,  and  then  only 
to  the  extent  of  the  benefits  received. 
See  the  following  cases: 

Colorado. — Chew  v.  Comm'rs  Fremont 
County,  18  Colo.  App.  162,  70  Pac.  764 
(1902). 

Connecticut. — Nichols  v.  Bridgeport, 
23  Conn.  189,  204,  60  Am.  Dec.  636 
(1854)  ;  Cone  v.  Hartford,  28  Conn.  303 
(1859);  Clapp  v.  Hartford,  35  Conn. 
66   (1868). 

Illinois. — Chicago  v.  Lamed,  34  111. 
203,  279  (1864)  ;  Lee  v.  Ruggles,  62  111. 
427  (1872);  Illinois  Cent.  R.  Co.  v. 
Bloomington,  76  111.  447  (1875);  Craw- 
ford v.  People  ex  rel.  Ramsey,  82  111. 
557    (1876). 

Idaho. — See  authorities  cited  infra. 

Indiana. — Montgomery  v.  Fuller 
(Ind.),   13  N.  E.  574    (1887);  Anderson 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     77 


is  unimportant  here.  It  is  enough  for  appellant  if  a  sale  would  take 
aU  its  right  and  vest  the  same  in  the  purchaser.  Of  that  we  think  there 
can  be  no  doubt.  That  the  assessment  must  be  on  the  basis  of  benefits 
to  be  received  is  equally  true.  But  that  question  cannot  arise  in  this 
case.  The  company  has  had  its  day  in  court,  both  before  the  commis- 
sioners and  in  the  district  court  on  confirmation  proceedings,  and  the 
judgment  therein  is  now  final,  and  the  company  can  no  longer  be  heard 
to  question  the  benefits  to  be  received.  As  a  matter  of  fact,  it  is  common 
knowledge  that  in  this  state  railroad  companies  do  irrigate  a  part,  at 
least,  of  their  station  grounds  at  all  such  stations  as  they  can  conveniently 
get  water,  and  it  was  admitted  on  oral  argument  of  this  case  that 
appellant  does  irrigate  a  part  of  the  station  grounds  covered  by  this 


v.  Kerns  Draining  Co.,  14  Ind.  199,  77 
Am.  Dec.  63  (1860);  O'Reiley  v.  Kan- 
kakee Valley  Draining  Co.,  32  Ind.  169 
(1869). 

Kansas. — Gilmore  v.  Hentig,  33  Kan. 
156,  174,  5  Pac.  781  (1885);  Wyandotte 
County  Comm'rs  v.  Abbott,  52  Kan.  148, 
34  Pac.  416    (1893). 

Louisiana. — In  re  New  Orleans  Drain- 
ing Co.,  11  La.  Ann.  338  (1856);  Ex- 
celsior Planting  &  Mfg.  Co.  v.  Green,  39 
La.  Ann.  455,  1  So.  873  (1887). 

Massachusetts. — Goddard  Petitioner, 
33  Mass.  (16  Pick.)  504  (1835);  Lowell 
v.  Hadley,  49  Mass.  (8  Met.)  180 
(1844);  Wright  v.  Boston,  63  Mass.  (9 
Cush.)  233  (1852);  Brewer  v.  Spring- 
field, 97  Mass.  152  (1867);  Green  v. 
Fall  River,   113  Mass.  262    (1873). 

Michigan. — Thomas  v.  Gain,  35  Mich. 
155,  24  Am.   Rep.   535    (1876). 

Minnesota. — Sanborn  v.  Rice  County, 
9    Minn.    273     (1864). 

New  Jersey. — Tidewater  Co.  v.  Coster, 
18  N.  J.  Eq.  (3  C.  E.  Gr.)  518,  90  Am. 
Dec.  634  (1866);  State  v.  Newark,  27 
N.  J.  L.  (3  Dutch)  185  (1858);  State 
v.  Fuller,  34  N.  J.  L.  (5  Vr.)  227 
(1870);  In  re  Drainage  of  Lands,  35 
N.  J.  L.  (6  Vr.)  497  (1872);  State  v. 
Jersey  City,  36  N.  J.  L.  (7  Vr.)  56 
(1872)  ;  State  v.  Hoboken,  36  N.  J.  L. 
(7  Vr.)  291  (1873);  Kean  v.  Driggs 
Draining  Co.,  45  N.  J.  L.  (16  Vr.)  91 
(1883);     Spear    v.    Essex    Public    Road 


Board,  47  N.  J.  L.  (18  Vr.)  191  (1885)  ; 
48  N.  J.  L.  (19  Vr.)  372,  9  Atl.  197 
(1886);  Aldridge  v.  Essex  Public  Road 
Board,  48  N.  J.  L.  (18  Vr.)  366,  5  Atl. 
784  (1886);  51  N.  J.  L.  (22  Vr.)  166, 
16  Atl.  695   (1888). 

New  York. — People  v.  Syracuse,  63  N. 
Y.  291,  299  (1875)  ;  Stryker  v.  Kelly,  7 
Hill  9,  23,  2  Den.  323  (1844);  In  re 
Fourth  Ave.,  3  Wend.  452  ( 1830) ;  In  re 
Albany  Street,  11  Wend.  149,  25  Am. 
Dec.  618  (1834)  ;  In  re  Canal  Street,  11 
Wend.  154  (1834);  In  re  William  Street 
19  Wend.  678    (1839). 

Ohio.— Hill  v.  Higdon,  5  Ohio  St.  243, 
67  Am.  Dec.  289  (1855);  Reeves  v. 
Wood  County,  8  Ohio  St.  333  (1858); 
Sessions  v.  Crunkilton,  20  Ohio  St.  349 
(1870);  Chamberlain  v.  Clevland,  34 
Ohio   St.   551,   561    (1878). 

Pennsylvania.  —  Commonwealth  v. 
Woods,  44  Pa.  St.  113  (1862)  ;  Hammett 
v.  Philadelphia,  65  Pa.  St.  146,  3  Am. 
Rep.  615  (1870— Read  and  Williams,  J  J., 
dissent)  ;  In  re  Washington  Ave.,  69  Pa. 
St.  352,  8  Am.  Rep.  255  (1871)  ;  Seeley 
v.  Pittsburgh,  82  Pa.  St.  360,  22  Am. 
Rep.  760  (1877);  Allegheny  City  v. 
Western  Pa.  R.  Co.,  138  Pa.  St.  375,  21 
Atl.  763    (1891). 

Tennessee. — McBean  v.  Chandler,  56 
Tenn.  (9  Heisk.)  349,  24  Am.  Rep.  308 
(1872). 

Wisconsin. — Weeks  v.  Milwaukee,  10 
Wis.  186   (1860). 


78 


Water  and  Mineral  Cases. 


[Idaho 


controversy.  Whether  it  be  from  this  system  or  not  is  immaterial  for 
the  purposes  of  this  inquiry.  The  question  of  notice  was  fully  covered 
in  the  original  opinion. 

Fourth.  It  is  contended  that  a  sale  of  a  portion  of  appellant's  right 
of  way  cannot  be  made.  Elliott  on  Railroads,  vol.  2,  §  790,  treating  of 
the  subject  of  assessments  on  a  railroad  right  of  way,  says :  "While  it  is 
probably  true  that  there  may  be  a  lien  on  the  right  of  way  of  a  railroad 
for  a  local  assessment,  where  such  assessment  is  authorized  by  statute, 
the  manner  of  enforcing  such  assessment  is  not  clearly  settled.  The  right 
of  way  of  a  railway  company  is  a  part  of  the  company's  property,  with- 
out which  it  could  not  perform  the  duties  it  owes  to  the  public.  To  sub- 
ject a  portion  of  the  right  of  way  to  a  sale  to  enforce  a  local  improve- 


Under  the  Idaho  Irrigation  Law,  and 
probably  under  some  others,  the  assess- 
ments are  required  to  be  levied  according 
to  the  benefits  received.  Settlers'  Irr. 
Dist.  v.  Settlers'  Canal  Co.,  14  Idaho 
504,  94  Pac.  829  (1908);  Gerber  v. 
Nampa  &  Meridian  Irr.  Dist.,  16  Idaho 
1,  100  Pac.  80  (1908)  ;  Portneuf  Irr.  Co. 
Limited  v.  Budge,  16  Idaho  116,  100  Pac. 
1046  (1909);  Knowles  v.  New  Sweden 
Irr.  Dist.,  16  Idaho  217,  101  Pac.  81 
(1908);  Oregon  Short  Line  R.  Co.  v. 
Pioneer  Irr.  Dist.,  16  Idaho  578,  102  Pac. 
904    (1909). 

F.     Confirmation. 

Proceedings  for  the  confirmation  of  an 
assessment  levied  for  any  purpose  by  an 
irrigation  district  are  fully  provided  for 
in  the  respective  laws  governing  their 
organization  and  management,  and  have 
already  been  sufficiently  discussed  in 
parts  III  and  VI,  D,  this  note. 

Courts  may  inquire  into  and  determine 
the  validity  of  the  assessment  of  an  ir- 
rigation district  or  other  proceedings, 
but  unless  the  statute  has  declared  the 
assessment  to  be  a  lien,  the  court  cannot 
adjudge  it  one,  and  if  the  statute  has 
declared  it  to  be  a  lien  and  provided 
for  its  enforcement,  its  enforcement  can 
be  made  in  the  manner  prescribed  by 
statute  only.  Boskowitz  v.  Thompson,  144 
Cal.  724,  78  Pac.  290   (1904). 

Under  the  Idaho  Irrigation  District 
Laws,   personal  service    upon    the    land- 


owners is  not  necessary  in  order  to 
render  judgment  confirming  an  assess- 
ment binding  upon  him  and  his  prop- 
erty; but  if  he  is  dissatisfied  with  the 
judgment  confirming  the  assessment,  he 
has  a  right  to  appeal  therefrom.  Knowles 
v.  New  Sweden  Irr.  Dist.,  16  Idaho  217, 
101   Pac.  81    (1908). 

G.    Current  Expenses,  to  Meet. 

Under  the  California  Wright  Act 
(§  17)  the  board  of  directors  of  an  ir- 
rigation district  is  authorized  and  em- 
powered to  levy  special  assessments  to 
cover  the  expenses  of  organization  and 
care,  operation,  management,  repair,  and 
improvement  of  canals  and  works,  in- 
cluding salaries,  wages,  and  expenses  of 
management,  as  well  as  for  the  sale  of 
bonds  by  means  of  which  to  make  the 
payments  required  upon  the  contracts 
for  the  construction  of  the  works.  Tre- 
gea  v.  O^.vens,  94  Cal.  317,  29  Pac.  643 
(1892)  ;  Hughson  v.  Crane,  115  Cal.  404, 
47  Pac.  120  (1896).  But  it  has  been 
held  that  a  "bond  expense  fund"  cannot 
be  included  in  such  assessment  in  the 
absence  of  a  special  election  authorizing 
an  assessment  for  such  fund ;  and  where 
the  board  of  directors  include  in  an  as- 
sessment a  "bond  expense  fund"  without 
such  authorization,  the  court  in  deter- 
mining that  the  invalidity  of  that  portion 
of  the  assessment  should  also  determine 
whether  the  disparity  between  the 
amount  levied  and  the  amount  which  the 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     79 


ment  would  greatly  embarrass,  if  not  entirely  destroy,  the  ability  of  the 
company  to  perform  its  public  functions.  The  rights  of  the  public  are  re- 
garded as  superior  to  the  rights  of  any  individual,  or  group  of  indi- 
viduals. Local  assessments  are  usually  levied  on  a  small  portion  of  a 
railway  right  of  way,  varying  from  a  few  feet  in  length  to  miles  in 
length.  To  permit  such  portion  to  be  sold  would  prevent  the  operation 
of  the  road,  and,  on  the  grounds  of  public  policy,  it  is  held  that  the 
ordinary  remedy  of  enforcing  the  collection  of  a  local  assessment  by  a 
sale  of  the  property  benefited  does  not  apply  to  the  enforcement  of  an 
assessment  against  the  right  of  way  of  a  railway  company.  While  there 
is  a  conflict  of  authority  on  this  subject,  the  decided  weight  is  that  the 
right  of  way,  if  sold  to  pay  the  assessment,  must  be  sold  as  a  whole,  and 


board,  in  its  discretion,  was  authorized 
to  raise  for  the  payment  of  annual  in- 
terest, was  such  as  to  vitiate  the  entire 
assessment.  Boskowitz  v.  Thompson,  144 
Cal.  724,  78  Pac.  290  (1904). 

H.     Description  of  Land. 

Under  the  California  Irrigation  Dis- 
trict Laws  (Sess.  Laws  1891,  p.  244, 
§  18,  subd.  2)  provision  is  made  that,  in 
the  assessment  books,  land  within  the 
district  shall  be  listed  by  township, 
range,  section  or  fractional  section,  and 
where  there  are  no  congressional  dis- 
tricts, by  metes  and  bounds  or  other  de- 
scription sufficient  to  identify  it.  An 
assessment  thus  entered  in  the  books  be- 
comes a  lien  upon  the  land  described  in 
such  books.  Best  v.  Wohlford,  153  Cal. 
17,  94  Pac.  98  (1908).  But  under  this 
statute  the  assessment  of  improvements 
in  an  irrigation  district  in  a  tax  levied 
for  district  purposes,  need  not  be  de- 
scribed in  the  assessment  book;  all  that 
is  necessary  is  a  general  description  of 
improvements,  with  the  value  at  which 
they  are  assessed.  Lahman  v.  Hatch,  124 
Cal.  1,  56  Pac.  621  (1899).  See  People 
v.  Rains,  23  Cal.  127    (1863). 

The  substantial  rights  of  persons  as- 
sessed are  not  affected  by  the  act  of  the 
assessor  taking  away  the  assessment 
book  while  ip  the  custody  of  the  board  of 
equalizatioi  from  five  o'clock  Saturday 
afternoon  uncil  Monday  morning,  for  the 
purpose    of    adding    therein   unnecessary 


description  of  improvements.  Lahman  v. 
Hatch,  124  Cal.  1,  56  Pac.  621  (1899). 
The  misdescription  of  lands  in  such 
book,  by  misnomer  in  the  ownership, 
does  not  invalidate  the  levy  where  the 
assessment  is  otherwise  properly  levied. 
Escondido  High  School  Dist.  v.  Escondido 
Seminary,  130  Cal.  128.  62  Pac.  401 
(1900). 

I.     Election. 

Under  the  provisions  of  section  37  of 
the  Wright  Act,  the  board  of  directors 
of  an  irrigation  district  have  no  author- 
ity to  levy  assessments  for  the  payment 
of  expenditures  authorized  thereby  with- 
out a  previous  approval  by  the  voters  of 
the  district  at  an  election  held  for  that 
purpose,  in  accordance  with  the  provis- 
ions of  section  41  of  that  Act,  which 
provides  for  the  calling  of  an  election 
for  the  purpose  of  submitting  the  ques- 
tion of  a  special  assessment  when,  in  the 
judgment  of  the  board  of  directors,  it 
may  be  advisable,  and  restricts  the  as- 
sessment to  an  authorization  to  a  vote 
by  the  district.  Tregea  v.  Owens,  94 
Cal.  317,  29  Pac.  643  (1892);  Hughson 
v.  Crane,  115  Cal.  404,  47  Pac.  120 
(1896).  And  where  an  assessment  is  not 
authorized  by  a  vote  of  the  district  the 
collection  may  be  restrained  by  an  in- 
junction. Woodruff  v.  Perry,  103  Cal. 
611,  37  Pac.  526  (1894). 

J.     Excessive  Levy. 

Although  the  board  of  directors  of  an 


80 


Wateb  and  Mineral  Cases. 


[Idaho 


not  in  broken  fragments."  It  will  be  seen  from  an  examination  of  the 
cases  cited  in  the  note  to  this  text,  as  well  as  the  text  and  notes  in 
28  Cyc.  121 1,  that  the  great  majority  of  the  courts  have  held  that  a 
railroad  right  of  way  cannot  be  sold  in  parcels  or  fragments  for  the  satis- 
faction of  local  assessments.  There  are  courts,  however,  which  hold  to 
the  contrary.  This  is  particularly  true  in  the  state  of  Illinois.  Wabash 
Eastern  Ry.  Co.  v.  East  Lake  F.  Dist,  134  111.  384,  25  N.  E.  781,  10  L. 
R.  A.  285 ;  Chicago  &  N.  W.  Ry.  Co.  v.  Village  of  Elmhurst,  165  111.  148, 
46  N.  E.  437. 

It  seems  to  be  conceded  by  all  the  authorities  that  the  legislature  has  the 
power  to  authorize  the  sale  for  local  assessments  of  a  portion  only  of  a 
railroad  right  of  way,  or,  rather,   of  the  portion  or  division   situated 


irrigation  district  has  a  discretion  as  to 
the  amount  to  be  levied  with  which  to 
meet  and  pay  the  annual  instalment  of 
interest  upon  the  bonds  already  issued 
by  the  district  (see  ante  VII,  B,  1,  and 
D,  this  note),  yet  where  a  levy  by  the 
directors  of  an  irrigation  district  is  in 
excess  of  what  they  are  entitled  to  im- 
pose, a  party  will  not  be  heard  in  a  court 
of  equity  seeking  to  enjoin  the  collection 
until  he  has  paid  the  amount  the  board 
had  the  power  to  levy  upon  the  land. 
Quint  v.  Hoffman,  103  Cal.  506,  37  Pac. 
514   (1894). 

The  collection  of  a  slight  excess  over 
and  above  the  amount  required  to  be 
made  by  an  assessment  to  pay  the  an- 
nual interest,  does  not  show  such  an 
abuse  of  discretion  by  the  board  of  di- 
rectors in  levying  the  assessment  as  will 
render  a  tax  deed  based  upon  the  assess- 
ment, invalid.  Escondido  High  School 
Dist.  v.  Escondido  Seminary,  130  Cal. 
128,  62  Pac.  401    (1900). 

In  an  action  to  enjoin  the  collector  of 
an  irrigation  district  from  selling  lands 
to  pay  an  assessment  for  interest  upon 
bonds,  the  collector  represents  the  dis- 
trict for  the  purposes  of  the  defense  only, 
and  not  for  purposes  of  seeking  affirma- 
tive relief.  Boskowitz  v.  Thompson,  144 
Cal.  724,  78  Pac.  290    (1904). 

Bondholders  intervening  in  a  suit  by 
landowners  to  restrain  the  collection  of 
taxes  to  pay  interest  on  bonds,  are  not 
entitled  to  affirmative  relief,  and  for  that 


reason  cannot  maintain  a  cross-complaint 
to  enforce  a  lien  upon  the  land  in  their 
favor  as  bona  fide  purchasers  for  value. 
Boskowitz  v.  Thompson,  144  Cal.  724,  78 
Pac.    290    (1904). 

Approved  arguendo  Alpers  v.  Bliss, 
145  Cal.  565,  79  Pac.  171    (1904). 

A  right  of  action  on  the  part  of  the 
landowners  to  enjoin  the  board  of  di- 
rectors of  an  irrigation  district  organ- 
ized under  California  Act,  March  7, 
1887,  from  making  future  assessments, 
accrues  with  a  threatened  levy  of  as- 
sessments and  not  with  the  issuance  and 
sale  of  the  bonds  for  the  payment  of  the 
annual  interest  or  the  principal  with 
which  the  assessment  is  threatened.  Mil- 
ler v.  Perris  Irr.  Dist.,  85  Fed.  693 
(1898). 

K.     Illegal    Levy. 

An  illegal  levy  of  an  assessment  by  an 
irrigation  district  may  be  ratified  by 
payment.  See  Calahan  v.  Chilcott  Ditch 
Co.,  37  Colo.  331,  86  Pac.  123    (1906). 

In  an  action  to  recover  assessments  al- 
leged to  be  illegally  paid  under  duress, 
the  plaintiff  is  entitled  to  plead  and 
prove  that  the  assessment  was  levied 
without  calling  a  special  election  or  sub- 
mitting the  question  to  the  qualified 
electors  of  the  district.  Tregea  v.  Owens, 
94  Cal.  317,  29  Pac.  643   (1892). 

One  who  pays,  under  protest,  unlawful 
assessments  made  against  another,  and 
out  of  the  moneys    of    such    other    party 


1909]  Oregon  Shoet  Line  R.  Co.  v.  Pioneee  Irrigation  Dist.    81 


within  the  taxing  district.  It  is  also  true  that  practically  all  the  author- 
ities holding  that  the  right  of  way,  if  sold  at  all,  must  be  sold  in  its  en- 
tirety, rest,  not  upon  any  constitutional  or  organic  right,  but  upon  what 
is  termed  "public  policy."  It  is  said  by  these  authorities  to  be  con- 
trary to  the  public  interest  and  convenience  and  detrimental  to  bond- 
holders and  the  railroad  company  to  have  a  railroad  right  of  way  sold 
in  sections  or  subdivisions.  The  reason  for  this  rule  fails  to  appeal  to 
us.  The  danger  of  a  railroad  system  being  divided  into  numerous 
sections  and  sold  to  divers  purchasers  is  too  remote  and  im- 
probable to  furnish  a  basis  or  premise  on  which  to  deny  jus- 
tice to  taxing  districts  and  a  ready  means  of  collecting  assessments 
lawfully    levied.      We    may    say    here  that  we  know    of  no  principle 

where  provision  is  made  for  exclusion  of 
lands  already  adequately  supplied  with 
water,   as   in   Idaho   and   Nebraska,   and 


held  for  the  purpose  of  such  payment, 
cannot  thereafter  recover  the  same  in  an 
action  instituted  for  that  purpose.  He 
will  be  deemed  to  have  no  interest* 
therein  or  cause  of  action  therefor.  Port- 
neuf  Irr.  Co.  Limited  v.  Budge,  16  Idaho 
116,   100  Pac.  104G    (1909). 

In  an  action  by  an  owner  of  land  in 
an  irrigation  district  to  void  and  cancel 
an  assessment  levied  upon  the  district, 
the  burden  of  proof  is  upon  the  plaintiff. 
Baxter  v.  Vineland  Irr.  Dist.,  136  Cal. 
185,  sub  nom.  Baxter  v.  Dickinson,  68 
Pac.  601   (1902). 

L.     Lien  on  Land. 

Under  the  various  statutes  providing 
for  the  organization  and  management  of 
irrigation  districts,  assessments  duly 
levied  and  properly  ratified  by  vote  con- 
stitute a  lien  upon  the  lands  in  the 
district.  Merchants'  Nat.  Bank  v.  Es- 
condido  Irr.  Dist.,  144  Cal.  329,  77  Pac. 
937  (1904).  Thus  section  18,  subd.  2  of 
the  California  Laws  of  1891,  p.  244,  pro- 
vides that  in  the  assessment  books,  land 
within  the  district  shall  be  listed  by 
township,  range,  section  or  fractional 
section,  and  where  there  are  no  congres- 
sional districts,  by  metes  and  bounds  of 
other  description  sufficient  to  identify  it, 
and  the  California  Supreme  Court  has 
held  that  the  assessment  is  a  lien  on  the 
land  described  in  the  assessment  book. 
Best  v.  Wohlford,  144  Gal.  733,  78  Pac. 
293  (1904).  In  those  states,  however, 
W.  &  M.— 6 


the  owner  of  such  lands  has  either 
waived  his  right  to  receive  water  from 
the  district  or  has  made  a  showing  of 
sufficient  water  for  land  already,  his 
lands  are  not  subject  to  assessment 
either  for  the  purpose  of  current  ex- 
penses to  pay  interest  on  bonds  or  to 
pay  the  bonds  of  the  district.  Nampa 
&  M.  Irr.  Dist.  v.  Brose,  11  Idaho  474, 
83  Pac.  499   (1905). 

M.  Misnomer. 
An  assessment  by  an  irrigation  dis- 
trict properly  imposed  upon  the  land  is 
not  invalidated  by  a  misnomer  as  to  the 
owner,  and  a  tax  deed  on  sale  thereunder 
is  not  vitiated  thereby.  Escondido  High 
School  Dist.  v.  Escondido  Seminary,  130 
Cal.  128,  62  Pac.  401    (1900). 

N.     Property  Subject  to. 
1.    Lands  within  District. 

Under  the  provisions  of  the  various 
statutes  regulating  the  organization  and 
control  of  irrigation  districts,  all  the 
lands  within  the  district  are  subject  to 
assessment  for  the  purpose  of  raising 
funds  wherewith  to  pay  the  expense  of 
the  management  of  the  district,  the  in- 
terest on  the  bonds,  and  to  retire  the 
bonds  at  maturity.  Portneuf  Irr.  Co. 
Limited  v.  Budge,  16  Idaho  116,  100  Pac. 
1046     (1909).      This    is    true   regardless 


82 


Water  and  Mineral  Cases. 


[Idaho 


of  public  policy  in  this  state  that  forbids  the  sale  of  a  portion 
of  a  railroad  right  of  way.  In  order  for  a  principle  or  rule  to  have  be- 
come a  part  of  the  public  policy  of  a  state,  it  must  have  been  either  ex- 
pressly or  impliedly  recognized  and  acted  upon  by  some  one  or  all  of  the 
departments  of  state  government  or  have  found  lodgment  and  recogni- 
tion, either  expressly  or  impliedly,  in  the  Constitution,  the  organic  law 


of  the  question  as  to  what  particular  use 
is  heing  made  of  any  particular  tract  or 
piece  of  land  at  the  time  the  district  is 
organized;  for  in  determining  whether 
land  within  a  district  will  be  benefited" 
by  an  irrigation  system,  the  county 
board  is  not  limited  to  lands  which  will 
be  used  for  agricultural  purposes,  or 
upon  which  water  will  be  beneficially 
used,  or  to  lands  devoted  to  any  partic- 
ular purpose.  Oregon  Short  Line  R.  Co. 
v.  Pioneer  Irr.  Dist.,  16  Idaho  578,  102 
Pac.  904  (1909). 

And  lands  which  by  reason  of  change 
of  plans  have  become  unnecessary  for  the 
purposes  of  the  irrigation  district,  in  the 
absence  in  the  statute  of  any  provisions 
for  their  disposition,  remain  impressed 
with  the  strict  trust  the  same  as  other 
lands  in  the  district,  and  equally  subject 
to  assessment.  Tulare  Irr.  Dist.  v.  Col- 
lins, 154  Cal.  440,  442,  97  Pac.  1124 
(1908).  See  San  Francisco  v.  LeRoy, 
138  U.  S.  656,  34  L.  Ed.  1097,  11  Sup. 
Ct.  364  (1890)  ;  Hart  v.  Burnett,  15  Cal. 
530  (1860);  Seale  v.  Doone,  17  Cal. 
476,  484  (1861);  Fulton  v.  Hanlovv,  20 
Cal.  450,  480  (1862);  Carlton  v.  Town- 
send,  28  Cal.  219  (1865)  ;  San  Francisco 
v.  Cannavan,  42  Cal.  541  (1872)  j  Ames 
v.  City  of  San  Diego,  101  Cal.  390,  35  Pac. 
1005   (1894). 

In  California  this  principle  has  been 
applied  to  assessments  for  benefits  upon 
lands  owned  by  public  corporations  not 
necessary  in  the  exercise  of  their  func- 
tions. Tulare  Irr.  Dist.  v.  Collins,  154* 
Cal.  440,  443,  97  Pac.  1124  (190S).  In 
Idaho,  however,  an  irrigation  district  or- 
ganized under  the  Idaho  Act  (Sess.  Laws 
1899,  p.  408)  acquires  jurisdiction  to 
levy  special  assessments  against  any  par- 
ticular tract  of  land  within  the  district 


for  the  purpose  of  purchasing  or  con- 
structing an  irrigation  system,  it  must 
appear  that  by  reason  of  such  construc- 
tion or  purchase,  the  district  is  going  to 
be  in  a  position  to  render  benefits  of  some 
character,  kind  or  nature,  to  the  partic- 
ular tract  of  land  on  which  it  seeks  to 
levy  its  assessments.  Jurisdiction  in  such 
cases  to  levy  special  assessments  is  de- 
pendent upon  the  power  and  ability  to 
confer  benefits  to  some  extent  and  in 
some  measure,  and  an  absolute  inability 
to  confer  any  benefits,  implies  and  sig- 
nifies a  lack  of  jurisdiction  to  levy  such 
assessments.  Portneuf  Irr.  Co.  Limited 
v.  Budge,  16  Idaho  116,  100  Pac.  1046 
(1909). 

2.     Lands  Detached  from  District. 

The  board  of  directors  of  an  irrigation 
district  has  no  power  to  levy  an  assess- 
ment upon  lands  not  included  within  the 
boundary  lines  of  the  district  in  accord- 
ance with  the  laws  governing  the  taking 
in  of  territory  (Oregon  Short  Line  R. 
Co.  v.  Pioneer  Irr.  Dist.,  16  Idaho  578, 
102  Pac.  904—1909)  ;  or  being  within 
the  district  is  exempted  by  the  statute 
for  the  reason  that  it  is  nonirrigable  (An- 
drews v.  Lillian  Irr.  Dist.,  66  Neb.  461, 
97  N.  W.  336—1893;  Sowerwine  v.  Cen- 
tral Irr.  Dist.,  85  Neb.  687,  124  N.  W. 
118 — 1909)  ;  or  where  the  owner  of  the 
land  already  has  sufficient  water  for  the 
purpose  of  irrigating  his  land,  and  has 
waived  his  right  to  the  use  of  water 
from  the  district,  in  accordance  with  the 
provisions  of  the  statute  providing  for 
the  exclusion  from  the  district  of  such 
lands.  Nampa  &  M.  Irr.  Dist.  v.  Brose, 
11  Idaho  374,  83  Pae.  499  (1905); 
Knowles  v.  New  Sweden  Irr.  Dist.,  16 
Idaho  217,   101   Pac.  81    (1908). 


1909]  Oregon  Short  Line  E.  Co.  v.  Pioneer  Irrigation  Dist.     & 


of  the  state.  No  such  principle  has  been  either  expressly  or  impliedly 
recognized  in  this  state.  The  contrary  has  been  the  uniform  rule  recog- 
nized by  the  legislative  department  of  this  state,  and  enforced  by  the  ex- 
ecutive and  judicial  departments  in  the  revenue  laws  of  the  state.  The 
irrigation  district  act  (sections  2407-2415,  Rev.  Codes)  directs  and  re- 
quires that  the  specific  property  on  which  the  assessment  is  levied  shall 


3.     Telegraph   Poles  and  Wires. 

Under  the  provisions  of  a  statute  taxing 
all  the  real  estate  within  an  irrigation 
district,  such  district  can  assess,  for  pur- 
poses of  revenue,  the  real  property  only 
situated  in  the  district;  telegraph  noles 
and  wires  of  teleoTa.nh.  comnanv  Dass- 
ine  through  the  district,  although  situ- 
ated uDon  the  right  of  wav  of  a  railroad 
company,  with  its  permission,  possess  the 
character  of  personal  property,  and  as 
such,  cannot  be  taxed  by  the  irrigation 
district.  Western  Union  Tel.  Co.  v.  Mo- 
desto Irr.  Co.,  149  Cal.  662,  87  Pac.  62 
(1906). 

4.    Pueblo  Lands  of  City. 

Pueblo  lands  of  a  city  situated  within 
the  limits  of  an  irrigation  district,  which 
by  law  are  exempted  from  taxation  for 
general  purposes,  if  so  situated  as  to  be 
susceptible  of  cultivation  by  irrigation, 
and  would  be  benefited  thereby,  although 
unoccupied  and  uncultivated,  are  liable 
to  an  assessment  for  purposes  of  the  ir- 
rigation district,  and  may  be  sold  by  the 
district  for  unpaid  assessments  thereon. 
City  of  San  Diego  v.  Linda  Vista  Irr. 
Dist.,  108  Cal.  189,  41  Pac.  291,  35  L. 
R.  A.  33   (1895). 

The  legislature  may  empower  a  city  to 
make  its  pueblo  lands  liable  for  an  assess- 
ment which  is  not  imposed  as  a  burden, 
but  as  its  proportion  of  the  expense  in- 
curred to  secure  a  local  benefit,  which,  in 
contemplation  of  law,  equals  or  exceeds 
the  charge  imposed.  City  of  San  Diego 
v.  Linda  Vista  Irr.  Dist.,  108  Cal.  189, 
41  Pac.  291,  35  L.  R.  A.  33    (1895). 

5.     Railroad   Right  of  Way. 
Where  a  railroad  »  corporation   owns   a 
right  of  way  and  station  grounds  within 


the  boundaries  of  a  proposed  irrigation 
district,  and  quietly  sits  by  and  makes 
no  objection  or  protest  to  the  organiza- 
tion of  such  district  or  the  confirmation 
of  the  same,  such  railroad  company  is 
concluded  by  the  action  of  the  board  of 
county  commissioners  in  including  such 
right  of  way  and  station  grounds  within 
the  district  and  the  judgment  of  the  dis- 
trict court  confirming  such  district,  and 
cannot,  in  a  collateral  proceeding,  attack 
the  jurisdiction  of  the  district  to  assess 
such  lands  on  the  ground  that  the  same 
were  not  benefited.  Oregon  Short  Line 
R.  Co.  v.  Pioneer  Irr.  Dist.,  16  Idaho  578, 
102  Pac.  904  (1909).  See  ante  III,  D 
and  J,  2,  and  IV,  E,  this  note. 

The  fact  that  the  officials  of  an  irri- 
gation district  neglect  to  assess  the  right 
of  way  and  station  grounds  of  a  railroad 
company  for  certain  years  is  not  a  rea- 
son why  such  right  of  way  and  station 
grounds  are  not  subject  to  assessment  by 
said  district;  and  the  company  cannot 
defeat  a  future  assessment  by  reason  of 
the  fact  that  its  property  was  not  as- 
sessed for  any  particular  year  or  years 
prior  to  the  assessment  made.  Oregon 
Short  Line  R.  Co.  v.  Pioneer  Irr.  Dist., 
16  Idaho  578,  102  Pac.  904   (1909). 

The  power  and  jurisdiction  of  the 
state  board  of  equalization  with  refer- 
ence to  the  assessment  of  railroad  prop- 
erty has  reference  to  assessments  made 
for  general  state,  county,  and  municipal 
purposes,  and  not  to  assessments  made 
for  local  improvements.  Oregon  Short 
Line  R.  Co.  v.  Pioneer  Irr.  Dist.,  16 
Idaho  578,  102  Pac.  904  (1909). 

6.      United    States    Lands. 

Although  the  expense  of  a  local  im- 
provement  is   usually   borne   by   the   re- 


84 


Watee  and  Mineeal  Cases. 


[Idaho 


be  advertised  and  sold  in  the  event  the  assessment  is  not  paid.  The  as- 
sessment can  only  be  made  upon  property  within  the  taxing  district.  We 
find,  therefore,  that  the  legislature  has  provided  that  only  such  portion 
of  a  railroad  company's  property  as  is  situated  within  an  irrigation  dis- 
trict can  be  sold.  As  for  a  sale  of  a  portion  of  a  company's  right  of 
way  being  any  more  detrimental  to  the  public  interest  than  a  sale  of  the 


gion  benefited  (see  Chew  v.  Board  of 
Comm'rs  of  Fremont  County,  18  Colo. 
App.  162,  70  Pac.  764—1902),  yet  where 
an  irrigation  district  which  has  been 
formed  so  as  to  include  within  its  boun- 
daries lands  belonging  to  the  United 
States  as  a  part  of  such  irrigation  dis- 
trict, the  board  of  directors  are  not  em- 
powered to  levy  an  assessment  upon  such 
lands  of  the  United  States.  Nevada  Nat. 
Bank  v.  Poso  Irr.  Dist.,  140  Cal.  344,  73 
Pac.  1056   (1903). 

O.  Sale  of  Land  to  Enforce  Payment. 
1.      In    California. 

Under  the  California  Wright  Act,  the 
collector  of  an  irrigation  district  has  au- 
thority to  sell  the  property  in  case  of 
nonpayment  of  the  assessment  thereon 
levied  by  the  board;  but  the  sale  by  him 
in  satisfaction  of  an  amount  directed  by 
the  court  is  unauthorized,  and  vests  no 
title  in  the  purchaser  at  such  sale. 
Boskowitz  v.  Thompson,  144  Cal.  724,  78 
Pac.  290   (1904). 

Where  lands  are  sold  to  pay  an  assess- 
ment levied  by  an  irrigation  district  by 
the  collector  of  the  district,  and  his  right 
to  that  office  is  not  called  in  question, 
the  fact  that,  by  reason  of  his  residence, 
he  might  have  been  disqualified  to  be- 
come a  de  jure  officer,  will  not  invalidate 
the  proceedings.  Baxter  v.  Vineland  Irr. 
Dist.,  136  Cal.  185,  sub  nom.  Baxter  v. 
Dickinson,  68  Pac.  601   (1902). 

Where  land  under  an  irrigation  dis- 
trict is  sold  for  nonpayment  of  assess- 
ments, the  fact  that  the  sale  was  mad* 
to  enforce  the  payment  of  two  separate 
assessments,  and  the  amount  of  each  as- 
sessment was  not  separately  stated  in 
the  notice  of  sale,  or  the  certificate  of 
sale,  or  in  the  deed,  will  not  have  the 


effect  to  avoid  the  proceedings.  Best 
v.  Wohlford,  153  Cal.  17,  94  Pac.  98 
(1908). 

A  sale  of  land  to  pay  an  assessment" 
levied  by  an  irrigation  district  under 
the  provisions  of  section  26  of  the 
Wright  Act  (Cal.  Stats.  1887,  p.  37), 
which  requires  the  sale  to  commence  on 
the  day  fixed  for  sale,  or  on  some 
subsequent  day  to  which  the  collector 
may  postpone  the  same,  a  sale  noticed 
for  February  22,  and  made  on  February 
24,  was  held  not  invalid  because  noticed 
for  a  legal  holiday.  Baxter  v.  Vineland 
Irr.  Dist.,  136  Cal.  185,  sub  nom.  Bax- 
ter v.  Dickinson,  68  Pac.  601    (1902). 

2.      In    Washington. 

Under  the  Washington  District  Irriga- 
tion  Law  ( 1  Ballinger's  Ann.  Codes  & 
Stats.,  §  4192),  the  owner  or  person  in 
possession  of  real  estate  offered  for  sale 
to  pay  assessments  of  a  district  due  upon 
such  land,  may  designate  in  writing  to 
the  secretary,  prior  to  the  sale,  what 
portion  of  the  property  he  wishes  sold, 
if  less  than  the  whole;  if  the  owner  or 
possessor  does  not  designate  in  writing 
or  at  all,  the  portion  of  the  land  to  be 
sold  to  pay  said  assessments,  it  becomes 
the  duty  of  the  secretary  of  the  irrigation 
district  to  so  designate,  but  it  is  not 
necessary  that  the  secretary  file  a  sep- 
arate written  paper,  his  recital  in  the 
records  of  the  sale  of  the  designation 
made  by  him  thereat,  will  be  sufficient. 
Rothchild  v.  Bellinger,  32  Wash.  307,  73 
Pac.  367  (1903).  See  Doland  v.  Mooney, 
79  Cal.  137,  21  Pac.  436  (1889); 
Hewes  v.  McLellan,  80  Cal.  393,  22  Pac. 
287  (1889);  Southworth  v.  Edmands, 
152  Mass.  203,  25  N.  E.  106,  9  L.  E..  A. 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     85 


whole,  it  is  difficult  to  understand.  We  do  not  see  how  the  railroad  com- 
pany, not  being  the  public  itself  and  not  being  the  representative  of  the 
public,  can  complain  if  a  taxing  district  sells  less  than  the  whole  line  of 
its  right  of  way.  The  purchaser  would  acquire  the  same  rights  as  the 
railroad  company  held,  and  would  be  entitled  to  operate  trains  over  the 
road  the  same  as  they  were  previously  operated  by  the  original  company. 


118  (1890)  ;  State  v.  Galloway,  44  N.  J. 
L.    (15  Vr.)    145    (1882). 

3.      Misnomer — Effect   on   Tax    Deed. 

Under  the  California  Wright  Act,  at 
assessment  by  an  irrigation  district, 
otherwise  properly  imposed  upon  the 
land,  is  not  invalidated  by  a  misnomei 
as  to  the  owner  thereof,  and  a  tax  deed 
on  sale  thereunder  is  not  vitiated 
thereby.  Escondido  High  School  Dist.  v, 
Escondido  Seminary,  130  Cal.  128,  62 
Pac  401    (1900). 

4.       Restraining    Sale. 

In  an  action  by  a  landowner  to  re- 
strain the  sale  of  his  lands  to  pay  an 
assessment  levied  by  an  irrigation  dis- 
trict to  meet  the  annual  interest  on 
bonds  of  the  district,  his  action  is  a  col- 
lateral and  not  a  direct  attack  upon  the 
validity  of  the  organization  of  the  dis- 
trict and  of  the  issue  of  the  bonds- 
(Baxter  v.  Vineland  Irr.  Dist.,  136  Cal. 
185,  sub  nom.  Baxter  v.  Dickinson,  68 
Pac.  601—1902);  and  the  holders  of  the 
bonds  of  the  irrigation  district  may  in- 
tervene on  alleging  that  the  defendant 
district  is  not  defending  in  good  faith ; 
but  where  holders  of  a  portion  only  of 
the  bonds  intervene,  the  holders  of  the 
balance  of  the  bonds  not  being  parties  to 
the  action,  no  decree  can  be  entered  ad- 
judging such  bonds  invalid.  Baxter  v. 
Vineland  Irr.  Dist.,  136  Cal.  185,  sub 
nom.  Baxter  v.  Dickinson,  68  Pac.  601 
(1902). 

In  such  an  action,  the  burden  is  upon 
the  plaintiff  to  establish  the  illegality  of 
the  assessment,  but  this  he  cannot  do  by 
a  minute  book  of  the  district  showing  a 
resolution  calling  for  special  election  for 
the  assessment,  and  a  resolution  showing 


that  the  returns  of  that  election  were 
canvassed  and  the  result  recorded,  but 
not  showing  that  a  notice  of  the  election 
was    given.  Baxter   v.    Vineland    Irr. 

Dist.,  136  Cal.  185,  sub  nom.  Baxter  v. 
Dickinson,  68  Pac.  601    (1902). 

P.     Segregation  of  Fund. 

Where,  under  the  California  Wright 
Act,  a  special  levy  is  made  and  a  lump 
sum  of  money  is  raised  for  a  specified 
purpose,  the  board  of  directors  have  no 
power  to  segregate  this  sum  into  sev- 
eral funds  corresponding  to  the  purposes 
specified,  the  whole  sum  being  equally 
applicable  to  the  payment  of  indebted- 
ness incurred  for  any  of  the  purposes  for 
which  it  is  provided.  Carter  v.  Tilgh- 
man,  119  Cal.  104,  51  Pac  34  (1897). 

A  warrant  in  form  made  payable  out" 
of  a  designated  fund  segregated  by  the 
board  of  directors  from  a  lump  sum 
raised  by  special  tax  is  payable  out  of 
any  funds  accruing  from  said  tax  in  the 
hands  of  the  treasurer.  Carter  v.  Tilgh- 
man,  119  Cal.  104,  51  Pac.  34  (1897); 
Higgins  v.  San  Diego,  131  Cal.  294,  303, 
63  Pac.  470    (1901). 

A  warrant  issued  prior  to  the  levying 
of  a  special  tax  to  create  a  lump  fund  out 
of  which  to  pay  obligations  of  a  specified 
kind  of  the  district,  is  no  objection  to 
its  payment  where  the  indebtedness  for 
which  issued  belongs  to  one  of  the  classes 
specified.  Carter  v.  Tilghman,  119  Cal. 
114,  51  Pac.  34   (1S97). 

Q.      Validity — District   de   Jure. 

On  the  validity  of  an  assessment  levied 
by  an  irrigation  district  does  not  depend 
for  its  validity  on  the  de  jure  character 
of  the  corporation  and  it  is  immaterial 
whether  the  district  be  a  district  de  jure 


86 


Water  and  Mineral  Cases. 


[Idaho 


It  makes  no  difference  to  the  public  whether  one  company  or  another  is 
operating  a  railroad  system.  But  this  discussion  of  the  sale  of  fragments 
and  subdivisions  of  a  railroad  right  of  way  for  local  assessments  is 
purely  theoretical  and  imaginary.  It  has  almost  uniformly  arisen  in 
cases  where  the  company  was  seeking  to  prevent  a  sale.  The  cases  are 
extremely  difficult  to  find,  as  a  matter  of  fact  and  in  practice,  where  a 


or  de  facto.    Quint  v.  Hoffman,  103  Cal. 
506,  37  Pac.  514   (1894). 

VIM.      Powers,    Duties  and    Liabilities. 
A.     The    Powers    of. 

Irrigation  districts  organized  pursuant 
to  any  of  the  acts  authorizing  the  crea- 
tion of  such  districts  are  purely  creatures 
of  the  statute  under  which  formed  and 
have  such  powers  and  only  such  as  are 
expressly  granted  by  the  statute  or  are 
impliedly  necessary  for  the  performance 
of  the  statutory  duty  of  the  districts. 
Willow  Springs  Irr.  Dist.  v.  Wilson,  74 
Neb.  269,  104  N.  W.  165  (1905);  Can- 
delaria  v.  Vallejos,  13  N.  M.  146,  81  Pac. 
589  (1905);  Little  Walla  Walla  Irr. 
Dist.  v.  Preston,  46  Or.  5,  78  Pac.  982 
(1904).  They  cannot  by  contract  limit 
their  legality  to  public.  See  Colorado 
Canal  Co.  v.  McFarlan,  15  Tex.  Ct.  Rep. 
848,  94  S.  W.  400  (1906).  Compare 
Moore-Cortes  Canal  Co.  v.  Guile,  36  Tex. 
Civ.  App.  442,  82  S.  W.  350  (1904). 
The  board  of  directors  of  an  irrigation 
district,  acting  for  the  district,  has  juris- 
diction and  can  deal  with  matters  affect- 
ing the  district,  as  a  whole  only.  Thus, 
it  has  been  held  that  where  an  injunction 
was  procured  by  a  district,  against  par- 
ties within  the  district,  restraining  them 
from  taking  water  from  the  ditches  of 
the  district,  and  this  injunction  was  vio- 
lated, resulting  in  injury  to  all  the  land- 
owners entitled  to  water  from  the  ditches 
of  the  district,  a  proceeding  for  con- 
tempt for  violation  of  the  injunction  can 
not  be  maintained  by  the  district,  in  the 
absence  of  proof  of  actual  or  special 
damages  to  the  district  as  an  organiza- 
tion separate  and  distinct  from  the 
rights  of  the  landowners  within  the  dis- 


trict.    Thompson  v.  McFarland,  29  Utah 
455,  82  Pac.  478   (1905). 

B.    The  Duties  of. 

1.     Generally. 

The  duties  devolving  upon  an  irriga- 
tion district  are  such  as  are  imposed  by 
law  and  necessary  for  the  proper  con- 
duct of  the  business  for  which  the  dis- 
trict is  organized,  and  none  other. 
Thus,  it  is  the  duty  of  the  district  to 
keep  the  canals  in  repair  so  as  to  carry 
water  to  the  several  consumers  along  the 
line  thereof,  and  to  turn  the  water  to 
the  consumers  out  of  its  main  canals  or 
laterals  at  such  place  or  places  as  will 
be  most  convenient  for  the  consumers, 
and  will  cause  the  least  waste  by  sepage 
or  extravagance.  Niday  v.  Barker,  16 
Idaho  73,  101  Pac.  254  (1909). 

Under  the  Idaho  Law,  an  irrigation 
district  is  not  required  to  construct  and 
keep  in  repair  at  all  times  for  public 
use  bridges  across  their  canals,  flumes  or 
water  pipes,  but  is  required  to  provide 
bridges  across  public  streets  and  roads, 
where  their  canals  or  ditches  are  ex- 
tended across  roads  or  streets  already  in 
existence.  MacCammelly  v.  Pioneer  Irr. 
Dist.,  17  Idaho  415,  105  Pac.  1076 
(1909). 

2.  To  Supply  Water. 
One  of  the  duties  of  an  irrigation  dis- 
trict is  to  supply  water  to  the  land- 
owners within  the  district;  but  a  refusal 
to  pay  for  the  use  of  water,  according  to 
the  regulations  of  the  district,  is  a  breach 
on  the  part  of  the  water-users  entitling 
the  district,  in  the  absence  of  legally 
established  rates,  to  sue  for  the  reason- 
able value  of  the  services  rendered.  Las- 
sen   Irr.    Co.    v.    Long    (Cal.,    Dec.    24, 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     87 


railroad  company  has  suffered  a  sale  either  of  its  whole  line  or  any  por- 
tion thereof  for  a  local  assessment.  The  company  that  cannot  pay  a 
local  assessment  is  not  able  to  operate  its  road  anyway,  and  a  company 
that  will  not  pay,  after  it  has  been  judicially  determined  that  it  should  do 

1909),  106  Pac.  409.  See  De  Prosse  v. 
Royal  Eagle  Distilleries  Co.,  135  Cal. 
408,  67  Pac.  502  (1902);  Leavitt  v. 
Lassen  Irr.  Co.  (Cal.,  Dec.  24,  1909), 
106  Pac.  404;  South  Boulder  &  R.  C. 
Ditch  Co.  v.  Marfell,  15  Colo.  302,  25 
Pac.  504   (1890). 

Depriving  a  landowner  within  a  dis- 
trict of  water  agreed  upon  and  provided 
for  his  land,  is  a  taking  of  his  property 
without  just  compensation  within  the 
prohibition  of  section  14,  art.  I  of  the 
Idaho  Constitution.  Knowles  v.  New  Swe- 
den Irr.  Dist.,  16  Idaho  217,  101  Pac.  81 
(1908). 

The  right  of  a  landowner  of  the  dis- 
trict to  the  use  of  the  water  acquired  by 
the  district  is  a  right  to  be  exercised  in 
consonance  with  and  in  furtherance  of 
the  ultimate  purpose  of  the  district, — 
namely,  for  the  improvement  by  irriga- 
tion of  lands  within  the  district, — and 
in  no  other  way.  His  right  is  always  in 
subordination  to  the  purpose  of  the  trust. 
So  far  only  as  he  proposes  to  use  the 
water  for  the  irrigation  of  lands  within 
the  district,  can  he  be  held  to  be  the 
owner  of  any  share  or  portion  of  the 
water.  Jenison  v.  Redfield,  149  Cal.  500, 
87  Pac.  62   (1906). 

Assignment  of  the  right  to  the  whole 
or  any  portion  of  a  share  of  water  a 
landowner  within  the  district  is  entitled 
to,  may  be  made,  but  the  owner  cannot 
make  an  effectual  transfer  of  such  share 
or  part  of  a  share  free  from  the  trust 
by  which  it  is  incumbered.  It  still  re- 
mains subject  to  the  trust,  and  for  that 
reason  can  be  used  for  the  irrigation  of 
lands  within  the  district  only.  Jenison  v. 
Redfield,  149  Cal.  500,  87  Pac.  62  (1906). 
This  is  thought  not  to  be  contrary  to 
anything  held  in  Modesto  Irr.  Dist.  v. 
Tregea,  88  Cal.  334,  353,  26  Pac.  237 
(1891). 

Under    the    Idaho    Constitution     (art. 


XV,  §  4),  a  person  cannot  acquire  a  per- 
petual water  right  beyond  the  carrying 
capacity  of  the  canal;  and  the  aggregate 
rights  of  the  users  of  water  cannot  ex- 
ceed the  capacity  of  the  canal;  and  any 
temporary  deliveries  of  water  at  times 
when  the  prior  users  are  not  demanding 
the  full  amount  of  water  to  which  they 
are  entitled  cannot  be  turned  into  a 
perpetual  water  right  by  the  persons  to 
whom  such  deliveries  are  made.  Gerber 
v.  Nampa  &  Meridian  Irr.  Dist.,  16 
Idaho  1,  100  Pac.  80    (1908). 

The  Idaho  Session  Laws  1899,  p.  382, 
§  19,  prohibit  a  water  company  from 
contracting  to  deliver  more  water  than 
its  canal  will  carry.  Gerber  v.  Nampa 
&  Meridian  Irr.  Dist.,  16  Idaho  1,  100 
Pac.   80    (1908.) 

And  under  the  section  of  the  constitu- 
tion above  referred  to,  providing  for 
sale,  rental,  or  distribution  of  water, 
and  also  providing  that  such  sale,  rental 
or  distribution  when  once  made  shall  be 
deemed  an  exclusive  dedication  to  such 
use,  it  was  not  intended  to  compel  a 
canal  company  that  already  had  suffi- 
cient customers  to  use  all  the  water  the 
capacity  of  its  canal  would  carry,  to  per- 
petually furnish  water  to  anyone  to 
whom  it  had  furnished  water  at  times 
when  its  regular  customers  did  not  re- 
quire it.  Gerber  v.  Nampa  &  Meridian 
Irr.  Dist.,  16  Idaho  1,  100  Pac.  80 
(190S). 

Where  an  irrigation  district,  under  the 
apportionment  of  benefits  by  reason  of 
the  purchase  of  a  canal  system,  to  the 
lands  under  it,  classified  the  benefits 
under  the  heads  of  "old  water"  and  "new 
water,"  the  term  "old  water"  refers  to 
existing  rights  at  the  time  of  the  pur- 
chase of  the  canal  and  "new  water"  re- 
fers to  rights  yet  to  be  acquired  by  the 
enlargement  of  the  canal,  and  no  benefits 
under  the  head  of  "old  water"  were  ap- 


88 


Watee  and  Mineeal  Cases. 


[Idaho 


so  and  that  it  is  legally  bound  to  do  so,  ought  to  be  put  out  of  business 
and  succeeded  by  one  that  is  law-abiding.  Fortunately,  and  to  the  credit 
of  the  railroad  companies  operating  in  this  state,  it  has  never  been  found 


portioned  to  the  lands  of  those  not  al- 
ready receiving  water;  and  where  it  ap- 
pears that  the  canal  has  not  been 
enlarged  so  as  to  acquire  any  new  water, 
and  it  does  not  appear  that  the  canal 
company  has  water  sufficient  to  supply 
the  demands  of  a  claimant  without  in- 
terfering with  the  use  of  private  users, 
such  claimant  cannot  acquire  a  perpetual 
water  right  by  the  temporary  use  of 
water  from  said  canal  at  times  when 
prior  users  are  not  demanding  the  full 
amount  of  water  to  which  they  are  en- 
titled. Gerber  v.  Nampa  &  Meridian  Irr. 
Dist.,   16   Idaho   1,   100   Pac.   80    (1908). 

Where  a  party  is  entitled  to  water  from 
a  ditch  company,  and  does  everything 
that  the  constitution  and  the  laws  of 
Idaho  require  him  to  do  in  order  to  get 
it,  the  company  is  bound  to  deliver  the 
water  to  him,  and  cannot  require  him 
to  sign  a  special  contract  binding  him 
to  do  things  which  the  law  does  not  re- 
quire him  to  do  in  order  to  get  the  water. 
Green  v.  Byers,  16  Idaho  178,  101  Pac. 
79  (1909). 

Where  water  has  been  delivered  to 
land  under  a  rental  and  distribution, 
and  has  been  applied  by  the  landowner 
under  such  rental  for  the  purpose  of 
raising  crops,  the  right  to  its  use  becomes 
a  dedication,  under  section  4,  art.  XV 
Idaho  Constitution,  and  the  user  and  con- 
sumer is  entitled  to  the  continued  use 
thereof  on  payment  of  the  water  rates 
established  in  conformity  with  law.  Ni- 
day  v.  Barker,  16  Idaho  73,  101  Pac 
254   (1909). 

In  an  action  to  compel  an  irrigation 
company  to  furnish  water  to  an  applicant 
therefor,  if  the  application  be  for  land 
which  had  not  previously  been  irrigated, 
then  it  is  incumbent  upon  the  applicant 
to  allege  and  prove  that  the  canal  com- 
pany has  water  flowing  through  its 
canal  to  which  prior  appropriators  are 
not  entitled.    Gerber  v.  Nampa  &  Merid- 


ian Irr.  Dist.,  16  Idaho  1,  100  Pac.  80 
(1908). 

Where  an  irrigation  company  contract- 
ed with  the  owner  of  land  for  a  right  of 
way  in  consideration  of  which  he  was 
to  have  the  privilege  of  purchasing  water 
from  it  for  the  purposes  of  irrigation, 
and  to  which  landowner  the  company 
supplied  water  for  a  term,  but  after- 
wards withdrew  the  same  for  the  pur- 
pose of  supplying  it  to  others,  mandamus 
will  lie  to  compel  the  company  to  con- 
tinue to  supply  water.  Merrill  v.  South- 
side  Irr.  Co.,  112  Cal.  426,  44  Pac.  720 
(1896). 

Where  an  irrigation  company  of  a 
district  wrongfully  withholds  from  an 
individual  who  is  entitled  to  water  he 
may  lawfully  demand,  the  measure  of 
damages  is  the  value  to  plaintiff  of  the 
use  of  said  right  during  the  time  he  is 
deprived  thereof,  and  it  is  not  error  to 
instruct  the  jury  that  the  measure  of 
plaintiff's  recovery  "is  the  value  of  the 
crop  at  the  time  the  water  was  shut  out 
of  said  canal,  with  the  right  to  irrigate 
it  from  that  time  on  to  the  end  of  the 
season,  less  the  value  of  the  crop,  with- 
out the  right  to  irrigate  it  from  that 
time  until  the  end  of  the  season."  Clague 
v.  Tri-State  Land  Co.  (Neb.,  May  21, 
1909),  121  N.  W.  570. 

An  irrigation  district  cannot  be  re- 
quired to  supply  water  to  lands  outside 
of  the  district;  hence  an  assessed  owner 
of  lands,  within  an  irrigation  district 
entitled  to  the  use  of  water,  and  as  as- 
signee of  the  water  right  of  another  land- 
owner within  the  district,  is  not  entitled 
to  receive  any  portion  of  the  water  to 
which  he  is  entitled,  as  landowner  or  as 
the  assignee  of  another  landowner,  to  be 
used  upon  lands  situated  outside  of  the 
district.  Jenison  v.  Redfield,  149  Cal. 
500,  87  Pac.  62    (1906). 

But  where  the  district  does  sup- 
ply its  surplus  water  for  the  irrigation 


1909]  Oregon  Short  Line  R.  Co.  v.  Pioneer  Irrigation  Dist.     89 


necessary  to  actually  make  any  such  sale  in  Idaho  for  a  local  assess- 
ment. 

We  discover  no  reason  for  granting  a  rehearing.    Petition  denied. 

STEWART,  J.,  concurs.     SULLIVAN,   C.  J.,  thinks    a    rehearing 
should  be  granted. 


of  lands  outside  of  the  district,  it  will 
be  entitled  to  shut  off  this  supply  when- 
ever the  landowners  within  the  district 
require  all  of  the  water  flowing  in  the 
district  for  the  purpose  of  irrigating 
their  lands.  Gerber  v.  N'ampa  &  Meridian 
Irr.  Dist.,  16  Idaho  1,  100  Pac.  80 
11908). 

The  fact  that  the  district  does  sup- 
ply water  to  lands  outside  of  the  district 
will  not  affect  the  validity  of  the  organ- 
ization of  the  district  or  of  the  bond* 
issued  thereby.  Settlers'  Irr.  Dist.  v. 
Settlers'  Canal  Co.,  14  Idaho  504,  94  Pac. 
829    (190S). 

C.     The  Liabilities  of. 
1.     Generally. 

An  irrigation  district  has  *11  the 
liabilities  incident  to  a  corporation  of 
its  character  and  such  general  liabilities 
as  are  fixed  by  law.  Thus,  where  an 
irrigation  district  purchases  water  rights, 
ditches  and  a  canal  system,  it  takes  them 
subject  to  all  duties  and  burdens  of  which 
it  has  notice  and  which  existed  against 
the  grantor.  Knowles  v.  New  Sweden  Irr. 
Dist.,  16  Idaho  217,  101  Pac.  81    (1908). 

The  district  is  liable  for  benefits  ac- 
cruing to  the  district  for  work  and 
labor  done  within  the  district  upon  its 
system  of  canals,  etc.,  which  has  been 
done  by  a  contractor  and  for  which  bonds 
have  been  issued  in  payment;  and  this 
liability  is  separate  and  independent  from 
its  liability  upon  the  bonds.  Hughson 
v.  Crane,  115  Cal.  404,  47  Pac.  120 
(1896). 

Where  a  contract  is  entered  into  which 
a  board  of  directors  of  an  irrigation  dis- 
trict is  authorized  by  law  to  make,  and 
the  district  has  received  the  benefits  of 
the  contract,  it  will  be  liable  for  the 
reasonable  value  of  the  services  render- 
ed, not  exceeding  the  contract  price,  not- 


withstanding the  fact  that  the  contract 
was  illegal  because  of  the  manner  in 
which  it  was  entered  into.  Lincoln  & 
Dawson  County  Irr.  Dist.  v.  McNeal,  60 
Neb.  621,  83  N.  W.  847  (1900). 
2.     To  Be  Sued. 

An  irrigation  district  has  the  right  to 
sue  and  also  the  liability  to  be  sued,  and 
on  judgments  recovered  thereunder.  Mil- 
ler v.  Perris  Irr.  Dist.,  85  Fed.  693 
(1898);  Board  of  Directors  of  River- 
side County  v.  Thompson,  122  Fed.  860 
(1903)  ;  Boehmer  v.  Big  Rock  Irr.  Dist., 
117  Cal.  19,  48  Pac.  908  (1897)  ;  Hewitt 
v.  San  Jacinto  &  P.  V.  Irr.  Dist.,  124 
Cal.  186,  56  Pac.  893   (1899). 

Where  an  irrigation  district  has  been 
sued  and  judgment  recovered  against  it, 
such  judgment  will  be  conclusive  against 
not  only  the  parties  before  the  court 
but  also  against  the  property  owners  o/ 
the  district  and  all  parties  who  may 
thereafter  be  called  upon  to  enforce  the 
judgment  therein  rendered,  as  to  all  ques- 
tions which  were  or  might  have  been  liti- 
gated in  action.  Board  of  Directors  of 
Riverside  County  v.  Thompson,  122  Fed. 
860  (1903).  But  in  California,  the  prop- 
erty of  an  irrigation  district  is  exempt 
from  sale  on  execution  (see  ante  I,  H,  2, 
this  note)  and  the  only  method  by  which 
the  judgment  can  be  enforced  is  by  man- 
damus to  compel  the  levy  of  an  assess- 
ment upon  the  property  within  the  dis- 
trict to  pay  the  judgment.  See  ante 
VI,  K,  2,  b,  this  note. 

3.    As  a  Nuisance. 

An  irrigation  ditch  or  canal  construct- 
ed and  maintained  under  the  authority 
of  law  governing  the  organization  and 
conduct  of  irrigation  districts,  cannot  be 
deemed  or  declared  to  be  a  nuisance.  Mac- 
Cammelly  v.  Pioneer  Irr.  Dist.,  17  Idaho 
415,  105  Pac.  176  (1909). 


90  Water  and  Mineral  Cases.  [Oregon 


WASHBURN  v.  INTER-MOUNTAIN  MINING  CO. 

[Supreme  Court  of  Oregon,  June  28,  1910.] 
—  Or.  — ,   109  Pac.   382. 

1.  Conditional   Sale   Distinguished   from   Chattel    Mortgage. 

Agreement  that  party  does  sell,  assign,  transfer  and  set  over  to  another  a 
certain  quartz  mill,  providing  that  until  the  entire  purchase  price  be  paid,  title 
shall  remain  in  the  seller,  is  a  conditional  sale  and  not  a  chattel  mortgage, 
although  it  be  provided  that  the  seller  may,  at  his  option,  enter  upon  and  take 
possession  of  the  mill,  etc.,  and  sell  the  same  in  case  of  default,  crediting  the 
proceeds    after    deducting    expenses. 

2.  Conditional   Sale — Fixtures — Effect  of  Agreement  as  to  Title. 

Where  mill  is  sold  under  condition  that  the  title  shall  not  pass  until  fully 
paid  for,  it  remains  personal  property  as  between  the  seller  and  buyer  although 
it   be   affixed   to   the   realty. 

3.  Same — Subject  to  Lien. 

Mill  sold  under  condition  that  title  shall  not  pass  until  fully  paid  for,  affixed 
to  the  realty,  becomes  a  fixture  as  to  laborers  without  notice  and  is  subject  to 
their    liens. 

4.  Same — Agreement    as   to   Title — Effect    on    Third    Parties. 

Mill  affixed  to  soil  under  conditional  sale  is,  as  to  third  parties  without  notice, 
a  fixture  and  will  be  treated  as  such  so  far  as  rights  of  third  parties  are  con- 
cerned. 

5.  Miners'  Liens — Contents  of  Notice. 

It  is  not  necessary  that  lien  notice  state  or  proof  show  that  labor  for  which 
lien  is  claimed  was  done  on  the  mill  or  building  to  subject  them  to  the  lien. 

6.  Same — What   Property   Affected. 

Reference  to  "roads,  tramways,  flumes,  ditches  and  pipe  lines,"  etc.,  in  §  5668, 
B.  &  C.  Comp.  as  amended  in  1907,  includes  such  appurtenances  when  not  situated 
upon  the  mine,  as  those  upon  the  mine  are  part  of  the  realty  and  need  not  be 
specially    mentioned. 

7.  Same — Mill  and   Mill  Site  Included. 

Use  of  term  "upon  any  mill  site  or  mill  used,  owned  or  operated  in  con- 
nection with  such  mine"  in  §  5668,  B.  &  C.  Comp.  prior  to  amendment  of  1907, 
had  reference  to  such  mill  site  and  mill  not  situated  upon  the  mine,  and  the  sec- 
tion as   amended   necessarily   includes   mill   site  and   mill   situated   upon   the  mine. 

8.  Same — Right  of   Foreman   to    Lien. 

Foreman  of  mine,  who  did  general  work,  helped  on  different  things,  framed 
timbers  and  looked  after  the  work,  is  entitled  to  a  miner's  lien. 

9.  Corporations — Effect  of  Knowledge  of  President  and   Manager. 

A  corporation  is  presumed  to  know  the  terms  of  an  agreement  made  by  its 
president    and    manager    for    its    benefit. 

10.  Same — Knowledge  of   Director. 

To  affect  a  director  of  a  corporation  individually,  knowledge  must  be  brought 
home  to  him  and  he  is  not  presumed  to  know  the  terms  of  an  agreement  made 
by  the  president  and  manager  of  the  corporation. 


1910] 


Washburn-  v.  Inter-Mountain  Mining  Co. 


91 


11.  Miners'  Liens — Evidence  to  Sustain. 

Evidence  of  one  who  employed  men,  directed  their  work,  kept  their  time  and 
■was  bookkeeper  of  the  mine,  that  the  claimants  worked  extracting  ores  and 
breaking  ground  in  different  places  on  the  property,  giving  the  whole  amount 
due  and  the  amounts  paid  the  laborers,  is  prima  facie  sufficient  to  sustain  a 
lien. 

12.  Same — Marshaling  Assets  to  Satisfy. 

It  is  only  when  there  are  two  properties  that  the  doctrine  of  marshaling 
securities  can  be  invoked  and  it  cannot  be  invoked  where  mines  and  mills  con- 
stitute one  property,  and  neither  can  be  sold  separately  without  a  depreciation 
in  value  of  the  other. 

Action  to  foreclose  miners'  liens,  upon  mines  and  mill  in  which  it  was 
contended  that  the  mill,  being  subject  of  a  conditional  sale,  was  not  sub- 
ject to  the  liens.    Judgment  for  plaintiff.     Affirmed. 

This  is  a  suit  to  foreclose  miners'  liens.  The  defendant  Inter-Mountain 
Mining  Company  was  the  owner  of  fourteen  mining  claims  in  Baker 
county,  Or.  W.  L.  Vinson,  at  the  time  of  the  acts  complained  of  in  the 
answer  of  Flack,  was  its  president  and  manager.  Between  May,  1908,  and 
June  14,  1909,  plaintiff  and  the  twenty  other  lien  claimants  mentioned  in 
the  complaint,  under  employment  of  the  defendant  company,  performed 
labor  upon  the  said  mines,  as  a  group,  in  constructing  tunnels  and  perform- 
ing other  work  for  the  development  thereof,  in  search  for  gold.  Upon  the 
latter  date,  at  suit  of  C.  E.  Bond,  Robert  D.  Carter  was  appointed  a 
receiver  for  defendant  company,  and  thereupon  took  possession  of  the 
mines.  Thereafter  on  June  23,  1909,  the  lien  claimants  filed  in  the  office 
of  the  county  clerk  of  Baker  county,  Or.,  notices  of  their  liens  upon 
the  mines  for  such  labor,  under  the  provisions  of  section  5668,  B.  &  C. 
Comp.,  as  amended  by  the  Laws  of  1907,  p.  293.  Thereafter  each  of  the 
other  lien  claimants  assigned  his  claim  to  plaintiff,  who,  on  July  30,  1909, 
brought  this  suit  to  foreclose  the  same.  The  defendant  corporation  and 
the  receiver  made  no  defense  to  the  suit.     Defendant  Bond  answered, 


CASE  NOTE. 

Miners'  Liens  on  Property,  Held 
Under  Contract  of  Conditional 
Sale. 

Where  a  chattel  such  as  a  quartz  mill 
is  purchased  under  agreement  that  the 
title  shall  not  pass  until  the  full  pur- 
chase price  is  paid,  and  which  chattel  is 
thereafter  affixed  to  the  land,  the  agree- 
ment amounts  to  a  stipulation  that  as  be- 
tween the  parties  it  should  remain  per- 
sonalty until  the  price  was  fully  paid. 
But  when  the  chattel  is  affixed  to  the  soil, 


the  situation  is  changed  as  to  the  rights 
of  third  parties  who  are  without  notice 
of  the  terms  of  the  agreement.  Wash- 
burn v.  Inter-Mountain  Min.  Co.,  prin- 
cipal   case. 

The  rule  that  a  conditional  sale  of 
a  chattel  is  valid  as  well  against  third 
parties  as  against  the  parties  to  the 
transaction,  relates  to  parties  dealing 
with  the  property  as  a  chattel  and  does 
not  apply  to  third  parties  without  no- 
tice of  the  condition,  where  the  character 
of  the  property  has  been  changed  to 
realty  by  being  affixed  to  the  soil,  and 


92 


Water  and  Mineral  Cases. 


[Oregon 


alleging  a  laborer's  lien,  which  was  disallowed  by  the  trial  court,  and  he 
does  not  appeal.  The  defendant  Flack  answered,  and  besides  denials,  al- 
leges affirmatively,  that  the  twenty-stamp  (quartz)  mill,  situated  upon  the 
mines,  is  personal  property  of  which  he  is  the  owner.  He  asks  that 
the  court  adjudge  that  it  is  not  subject  to  the  liens  of  plaintiff;  and  that 
the  receiver  be  directed  to  release  it  to  him,  his  contention  being,  that  on 
May  2,  1908,  he  was  the  owner  thereof,  it  being  situated  in  Malheur 
County,  Or.;  and  that  on  that  day  he  entered  into  an  agreement  with 
W.  L.  Vinson  for  the  sale  of  it  to  him  in  the  following  words  (omitting 
the  preliminary  statement  and  signatures)  viz.:  "Now,  therefore,  in  con- 
sideration of  the  sum  of  one  thousand  dollars  ($1,000)  in  hand  paid  by 
the  party  of  the  second  part  to  the  party  of  the  first  part,  the  receipt 
whereof  is  hereby  acknowledged  and  confessed,  the  said  party  of  the 
first  part  has  this  day  sold,  assigned  and  disposed  of  and  by  these  pres- 
ents does  hereby  sell,  assign,  transfer  and  set  over  unto  the  said  party  of 
the  second  part  the  said  mill  consisting  of  one  (1)  twenty-stamp  mill 
including  building  and  all  machinery,  dies,  tools  and  appurtenances 
thereunto  belonging,  except  the  dwelling  house,  blacksmith  shop,  two  ore 
cars  and  three  hundred  feet  of  rails,  upon  the  following  terms  and  con- 
ditions, to  wit:  First.  The  said  party  of  the  second  part  hereby  prom- 
ises and  agrees  to  remove  said  mill,  building,  machinery,  tools  and  appur- 
tenances unto  property  owned  by  him  situated  near  the  Rainbow  mine,  in 
the  county  of  Baker  and  state  of  Oregon,  as  soon  as  may  be  hereafter, 
and  to  do  all  of  said  work  free  of  charge  to  the  party  of  the  first  part. 
Second.  The  said  party  of  the  second  part  hereby  promises  and  agrees 
to  pay  to  the  said  party  of  the  first  part  the  further  sum  of  nine  thousand 
dollars  ($9,000)  according  to  the  terms  and  conditions  of  one  certain 
promissory  note  bearing  even  date  herewith,  executed  by  the  said  party 
of  the  second  part  to  the  party  of  the  first  part  as  the  balance  of  the  pur- 
chase price  of  said  mill  and  machinery,  and  that  until  the  entire  purchase 


therefore,  where  a  mill  was  delivered 
to  a  mining  company  under  an  agree- 
ment amounting  to  a  conditional  sale, 
but  was  attached  to  the  realty  so  as  to 
become  a  fixture,  the  mining  company 
became,  as  to  laborers  without  notice, 
the  owner  of  the  mill,  and  it  with  the 
mine  became  subject  to  liens  of  the  la- 
borers. Washburn  v.  Inter-Mountain 
Min.  Co.,  principal  case. 

Where  certain  machinery,  etc.,  was 
bought  for  use  in  a  mine  under  contract 
providing  that  the  title  should  not  pass 
until  the  purchase  price  was  fully  paid, 


which  machinery,  etc.,  was  delivered  at 
the  mine  but  part  of  it  was  never  set 
up  or  affixed  to  the  premises,  it  was 
held  that  the  part  not  set  up  or  affixed 
to  the  mine  was  not  liable  for  miners'  or 
mechanics'  liens.  The  lien  was  sustained 
as  to  that  part  which  was  set  up  and 
affixed.  Hamilton  v.  Delhi  Mining  Co., 
118  Cal.   148,  50  Pac.   378    (1897). 

Machinery  purchased  by  one  in  pos- 
session of  a  mining  claim  under  a  con- 
tract to  purchase  the  same,  providing 
that  if  he  failed  to  fulfil  the  contract, 
he    could    remove    any    machinery,   etc., 


1910]         Washburn  v.  Inter-Mountain  Mining  Co. 


93 


price  shall  have  been  paid,  the  title  to  the  said  mill  and  all  machinery 
hereinbefore  described  shall  be  and  remain  in  the  party  of  the  first  part. 
Third.  Upon  the  payment  to  the  said  party  of  the  first  part  of  the  entire 
purchase  price  of  said  property,  he  hereby  promises  and  agrees  to  satisfy 
and  release  unto  the  said  party  of  the  second  part  all  claim,  right  and 
title  in  and  to  said  mill  and  machinery.  Fourth.  It  is  further  under- 
stood and  mutually  agreed  by  and  between  the  parties  hereto  that  time  is 
of  the  essence  of  this  contract,  and  that  for  any  failure  on  the  part  of 
the  party  of  the  second  part  to  make  the  aforesaid  payments  in  accord- 
ance with  the  aforesaid  promissory  note,  the  said  party  of  the  first  part 
may,  at  his  option,  enter  upon  and  take  possession  of  the  aforesaid  mill, 
machinery,  tools  and  appurtenances,  together  with  all  improvements 
made  thereon,  either  with  or  without  process  of  law,  and  to  sell  the  same 
either  at  private  or  public  sale,  after  having  given  ten  (10)  days'  written 
notice  thereof  by  publication  or  otherwise,  and  to  indorse  upon  said 
note  after  the  payment  of  all  expenses  the  money  remaining  from  the 
sale  thereof,  it  being  distinctly  understood  that  the  party  of  the  first  part 
may,  at  his  option,  regard  this  merely  as  an  option  to  purchase.  Fifth. 
It  is  further  understood  and  mutually  agreed  by  and  between  the  parties 
hereto  that  the  covenants,  stipulations  and  agreements  herein  contained 
shall  be  binding  alike  upon  heirs,  executors,  administrators  and  assigns 
of  the  parties  hereto  as  upon  the  parties  themselves." 

In  July,  1908,  the  mill  and  buildings  were  moved  by  defendant  com- 
pany to  the  mines  for  the  operation  thereof  and  erected  thereon,  being 
permanently  affixed  to  the  soil.  Additions  were  also  made  to  the  ma- 
chinery and  buildings  at  the  same  time,  viz. :  an  engine,  dynamo,  concen- 
trator, shafts,  pulleys,  etc.,  which  were  also  permanently  affixed  to  the 
soil,  and  in  the  month  of  February,  1909,  Vinson  duly  assigned  such 


affixed  by  him  to  the  claim  by  agree- 
ment of  conditional  sale  whereby  the 
title  was  not  to  pass  until  full  payment 
made,  is  not  subject  to  laborer's  lien, 
although  it  was  affixed  to  the  realty. 
Jordan  v.  Myres,  126  Cal.  565,  58  Pac. 
1061     (1899). 

The  lessors  (so  called)  of  machinery 
to  be  used  in  mine  whereby  they  agree 
to  transfer  title  upon  payment  of  a 
eertain  amount,  are  not  required  to 
give  notice  required  by  Civil  Code  Pro- 
cedure, §  1192,  providing  for  notice  of 
nonliability  for  work,  etc.  (but  see 
amendment  of  1907,  Kerr's  Bien.  Supp.) 


Jordan  v.  Myres,  126  Cal.  565,  58  Pac. 
1061    (1899). 

When  a  chattel  which  was  sold  for 
that  purpose  has  been  affixed  to  the 
soil,  the  party  dealing  with  reference 
to  the  realty  upon  which  the  chattel  is 
situated  without  notice  of  a  reservation 
of  title  in  the  agreement,  will  not  be 
affected  thereby,  but  as  to  him  the 
chattel  will  be  treated  as  a  fixture. 
Hershberger  v.  Johnson,  37  Or.  109,  60 
Pac.  838    (1900). 

Where  under  agreement  for  the  pur- 
chase of  a  mine  and  mill  under  the  terms 


94 


Watee  and  Mineral  Cases. 


[Oregon 


agreement  to  the  defendant  company.    Upon  the  trial  a  decree  was  ren- 
dered in  favor  of  plaintiff.     Defendant  Flack  appeals. 

For  appellant — A.  D.  Clifford. 

For  appellee — Gustav  Anderson. 

EAKIN,  J.  (after  stating  the  facts  as  above).  The  first  question  for 
determination  is  whether  the  agreement  between  Flack  and  Vinson  is  a 
conditional  sale  or  a  chattel  mortgage,  and  this  must  be  ascertained 
from  the  intention  of  the  parties  as  gathered  from  the  language  of  the 
agreement.  It  recites  that  the  first  party  "does  hereby  sell,  assign,  trans- 
fer, and  set  over  unto  the  said  party  of  the  second  part,"  etc.  But  it 
provides  that,  "until  the  entire  purchase  price  shall  have  been  paid,  the 
title  to  the  said  mill  and  all  machinery  hereinbefore  described  shall  be 
and  remain  in  the  party  of  the  first  part,"  clearly  indicating  a  conditional 
sale.  Such  has  been  the  holding  of  this  court  in  several  cases :  Singer 
M.  Co.  v.  Graham,  8  Or.  17,  34  Am.  Rep.  572;  Herring-Marvin  Co.  v. 
Smith,  43  Or.  315,  72  Pac.  704,  73  Pac.  340.  The  further  stipulation 
in  the  agreement  that  "the  said  party  of  the  first  part  may,  at  his  option, 
enter  upon  and  take  possession  of  the  aforesaid  mill,  machinery,  tools, 
and  appurtenances,  together  with  all  improvements  made  thereon,  either 
with  or  without  process  of  law,  and  to  sell  the  same  either  at  private 
or  public  sale  *  *  *  and  to  indorse  upon  said  note  after  the  pay- 
ment of  all  expenses  the  money  remaining  from  the  sale  thereof"  does 
not  constitute  it  a  chattel  mortgage,  as  the  plain  intention  of  the  parties 
was  that  the  vendor  shall  retain  the  title.  Freed  Furniture  &  Carpet 
Company  v.  Sorensen,  28  Utah  419,  79  Pac.  564,  107  Am.  St.  Rep.  731. 
Also,  see  note  to  this  case  in  3  Am.  &  Eng.  Ann.  Cas.  639.  And  as  the 
mill  was  purchased  by  Vinson  for  the  defendant  corporation,  for  the 
operation  of  these  mines,  the  title  thereto  remained  in  Flack  as  against 
both  Vinson  and  the  defendant  company.  And  this  is  the  result  even 
though  the  chattel  be  permanently  affixed  to  the  freehold,  the  agreement 
being  permitted  to  control.  It  is  held  in  Alberson  v.  Elk  Creek  Min- 
ing Company,  39  Or.  552,  65  Pac.  978,  that  "Laterally,  the  strict  rule 
that  whatsoever  is  affixed  to  the  soil  partakes  of  the  nature  and  becomes 
a  part  of  the  realty  itself,  has  been  much  relaxed  to  meet  the  require- 


of  which  the  proposed  purchaser  was  to 
take  possession  and  any  and  all  machin- 
ery and  tools  put  upon  or  used  in  the 
mill  or  mine  should  become  the  property 
of  the  owners  in  case  the  proposed  pur- 
chaser did  not  complete  his  purchase,  it 
was  held  that  one  who  furnished  the 
machinery  to  the  proposed  purchaser  un- 


der agreement  that  title  should  not  vest 
until  it  was  paid  for,  knowing  that  it 
was  to  be  affixed  to  the  mine,  but  not 
knowing  the  terms  of  the  contract  as  to 
the  ownership  of  improvements  in  case 
of  default  could  recover  machinery  where 
the  proposed  purchaser  failed  to  pay 
for  the  machinery  and  defaulted  in  the 


1910]         Washbtjkn  v.  Intek-Mountain  Mining  Co. 


95 


merits  of  manufacturing  industries  and  trade  relations,  so  that  now  the 
question  whether  an  article  of  personalty  in  its  original  state  has  become 
a  part  of  the  freehold  depends  upon  three  conditions :  Annexation,  real 
or  constructive ;  adaptability  to  the  use  or  purpose  of  the  realty  to  which 
it  is  attached;  and  the  intention  of  the  party  making  the  annexation  to 
make  it  a  permanent  accession  to  the  freehold." 

No  doubt  it  was  the  intention  of  both  Vinson  and  the  defendant  com- 
pany to  make  the  building  and  mill  a  permanent  accession  to  the  free- 
hold.    But  the  agreement  amounts  to  a  stipulation  that,  as  between  the 
parties  to  the  agreement,  it  should  remain  personalty  until  the  price  was 
fully  paid.     Landigan  v.  Mayer,  32  Or.  245,  51   Pac.  649,  67  Am.  St. 
Rep.  521 ;  Hershberger  v.  Johnson,  37  Or.  109,  60  Pac.  838.     However, 
when  the  mill  is  affixed  to  the  soil,  the  situation  is  changed  as  to  the 
rights  of  third  parties  who  are  without  notice  of  the  terms  of  the  agree- 
ment.    When  the  chattel,  which  was  sold   for  that  purpose,  has  been 
affixed  to  the  soil,  a  party  dealing  with  reference  to  the  realty  upon  which 
the  mill  is  situated,  without  notice  of  the  reservation  in  the  agreement, 
will  not  be  affected  thereby ;  but,  as  to  him,  the  mill  will  be  treated  as  a 
fixture.     The  reason  for  this  rule  is  that  to  hold  otherwise  would  ren- 
der uncertain  land  titles,  endanger  the  rights  of  purchasers,  and  afford 
opportunities  for  fraud.     The  condition  of  the  agreement,  being  unre- 
corded, is  in  the  nature  of  a  secret  lien,  which  is  contrary  to  the  policy 
of  our  law.     This  rule  is  laid  down  by  this  court  in  Muir  v.  Jones,  23 
Or.  332,  31  Pac.  646,  19  L.  R.  A.  441,  where  it  was  urged,  as  here,  that 
the  vendee  of  the  chattel  could  invest  the  plaintiff  with  no  better  title 
than  he  himself  had.     Mr.  Chief  Justice  Lord  says:     "We  are  unable 
to  subscribe  to  this  doctrine"  and  holds  that  while  by  agreement  barns  or 
other  structures  so  attached  to  the  soil  as  to  become  part  of  the  realty, 
may  be  made  to  remain  personal  property,  yet  the  general  course  of  de- 
cisions is  that  a  purchaser  of  land  on  which  such  fixtures  are  located 
must  have  notice  of  such  agreement  or  he  will  be  entitled  to  hold  them 
as  part  of  the  realty.    To  the  same  effect,  see  Landigan  v.  Mayer,  32  Or. 
245,  51  Pac.  649,  67  Am.  St.  Rep.  521 ;  Union  B.  &  T.  Co.  v.  Wolf  Co.,  114 
Tenn.  255,  86  S.  W.  310,  108  Am.  St.  Rep.  903,  and  note  to  the  latter 
case  in  4  Am.  &  Eng.  Anm  Cas.  1073,  where  the  authorities  are  reviewed. 
It  is  true,  as  stated  by  counsel  for  defendant,  that  an  agreement  for  the 
conditional  sale  of  a  chattel  is  valid  as  well  against  third  parties  as 
against  the  parties  to  the  transaction.     Singer  M.  Co.  v.  Graham,  8  Or. 
17,  34  Am.  Rep.  572.     But  that  rule  relates  to  parties  dealing  for  the 


agreement  to  purchase.  Hendy  v.  Dinker- 

hoff,  57  Cal.  3,  40  Am.  Rep.  107   (1880). 

As   to   machinery,   pumps,   etc.,   of   oil 


wells  being  trade  fixtures  and  removable 
as  such,  see  note  to  Perry  v.  Acme  Oil 
Co.,  p.  99,  vol.  1,  this  series. 


96 


Water  and  Mineral  Cases. 


[Oregon 


property  as  a  chattel,  and  does  not  apply  to  third  parties  without  notice 
of  the  condition,  where  the  character  of  the  property  has  been  changed 
to  realty  by  being  affixed  to  the  soil.  Also,  as  defendant  contends,  a 
mechanic's  lien  claimant  must  connect  himself  with  the  owner  of  the 
property.  But  Flack  has  no  interest  in  the  realty,  nor  does  the  lien 
reach  the  personalty,  and,  as  to  the  laborers  without  notice,  the  defendant 
company  was  the  owner. 

It  is  not  necessary  that  the  lien  notice  shall  state  or  the  proof  show 
that  the  labor  for  which  the  lien  is  claimed  was  done  on  the  mill  or 
building  to  subject  them  to  the  lien.  Section  5668,  B.  &  C.  Comp.,  as 
amended  (Laws  1907,  p.  294)  provides:  "That  when  two  or  more 
mines  *  *  *  are  claimed  by  the  same  person  or  persons  and  worked 
through  a  common  shaft  or  tunnel  *  *  *  or  at  one  mill,  or  other 
reduction  works,  then  all  the  mines  *  *  *  and  all  roads,  tramways, 
trails,  flumes,  ditches  or  pipe  lines,  buildings,  structures  or  superstruc- 
tures used  or  owned  in  connection  therewith  shall,  for  the  purposes  of 
this  act,  be  deemed  one  mine."  The  reference  in  this  language  to  "roads, 
tramways,  flumes,  ditches,  and  pipe  lines,"  etc.,  includes  such  appur- 
tenances when  not  situated  upon  the  mine,  as  those  upon  the  mine  are 
part  of  the  realty  and  need  not  be  specially  mentioned.  And  so  the 
use  of  the  term  "upon  any  millsite  or  mill  used,  owned,  or  operated  in 
connection  with  such  mine,"  in  section  5668,  prior  to  the  amendment  of 
1907,  had  reference  to  such  millsite  and  mill  not  situated  upon  the  mine, 
as  is  further  shown  by  the  subsequent  language  of  that  section.  There- 
fore, the  section  as  amended  necessarily  includes  the  millsite  and  mill 
situated  upon  the  mine  without  being  specially  named. 

It  is  further  contended  by  defendant  that  the  decision  in  Durkheimer 
v.  Copperopolis  Copper  Co.,  104  Pac.  895,  precludes  recovery  by  plain- 
tiff Washburn  upon  his  individual  lien,  for  the  reason  that  he  was  super- 
intendent and  manager  of  the  defendant  company.  But  the  evidence 
does  not  disclose  that  he  was  superintendent  or  manager  of  defendant 
company.  On  the  contrary,  he  testifies  that  he  was  foreman  and  did 
general  work,  helped  on  different  things,  made  things,  framed  timbers, 
and  looked  after  the  work.  On  cross-examination  he  says  his  business 
was  foreman  and  to  see  that  the  work  was  done  in  different  places ;  that 
he  framed  timbers ;  helped  the  men ;  did  this,  that,  and  the  other,  to 
help  the  thing  along;  and  that  he  took  part  in  the  erection  of  the  mill. 
His  employment  comes  directly  within  the  holding  in  Flagstaff  v.  Cul- 
lins,  104  U.  S.  176,  26  L.  Ed.  704,  that  "he  was  the  overseer  and  foreman 


As  to  mechanic's  liens  on  gas  and 
oil  wells,  see  note  to  Phillips  v.  Spring- 
field Crude  Oil  Co.,  p.  — ,  vol.  2,  this 
series. 


As  to  for  what  services  mechanics'  liens 
are  allowed  on  mines,  see  note  to  Gray 
v.  New  Mexico  Pumice  Stone  Co.,  p.  157, 
this  volume. 


1910]  Washburn  v.  Inter-Mountain  Mining  Co.  97 

of  the  body  of  the  miners  who  performed  manual  labor  upon  the 
mine.  He  planned  and  personally  superintended  and  directed  the  work. 
*  *  *  His  duties  were  similar  to  those  of  the  foreman  of  a  gang 
of  track  hands  upon  a  railroad,  or  a  force  of  mechanics  engaged  in 
building  a  house."  This  language  is  quoted  with  approval  in  Durkheimer 
v.  Copperopolis  Company,  and  distinguishes  the  case  we  are  considering 
from  the  latter.  It  is  also  urged  by  defendant  that  Washburn  must  be 
presumed  to  know  the  terms  of  the  agreement  between  Flack  and 
Vinson  as  he  was  an  officer  and  director  of  the  defendant  company.  No 
doubt,  the  defendant  company  is  presumed  to  know  the  terms  of  that 
agreement  because  its  president  and  manager  had  notice  and  it  was 
made  for  its  benefit.  Thompson  on  Corp.  (2d  Ed.),  §  1673;  §  1668. 
But  not  so  as  to  Washburn,  although  he  was  a  director.  To  affect  him 
individually,  knowledge  must  be  brought  home  to  him.  He  denies  any 
knowledge  that  the  sale  was  conditional,  and  there  is  no  evidence  that 
shows  he  had  notice  thereof.  The  statement  in  Holly  Mfg.  Co.  v. 
New  Chester  Water  Company  (C.  C),  48  Fed.  889,  that  "it  appears 
that  some  of  the  directors  had  positive  knowledge  of  the  terms  of  the 
contract  with  the  Holly  Company  and,  under  the  circumstances,  notice 
thereof  is  to  be  imputed  to  them  all,"  only  means  all  as  constituting  the 
corporation  and  is  not  authority  for  holding  that,  in  an  individual  mat- 
ter, a  director  is  charged  with  notice  because  the  corporation  is  presumed 
to  have  notice  on  account  of  notice  to  another  director. 

It  is  said  in  Peckham  v.  Hendren,  j6  Ind.  47,  that  knowledge  is  imput- 
able to  a  corporation  by  the  acts  of  its  agent,  but  will  not  be  imputed  to 
an  officer  thereof  in  a  transaction  between  him  and  the  corporation  in 
which  he  is  acting  for  himself  and  not  for  it.  To  the  same  effect  is 
Cook  on  Stock  and  Stockholders,  §  727;  Cook  on  Corp.,  §  727;  Rudd  v. 
Robinson,  126  N.  Y.  113,  26  N.  E.  1046,  12  L.  R.  A.  473,  22  Am.  St. 
Rep.  816.  It  is  urged  that  there  is  no  evidence  as  to  the  kind  of  work  or 
where  it  was  performed  by  the  claimants,  or  that  the  claims  were  not 
paid.  But  it  appears  from  the  evidence  that  Washburn  employed  the 
men,  directed  the  work,  kept  their  time,  and  was  bookkeeper.  He  tes- 
tifies, as  to  King,  that  he  worked  in  the  mine,  extracting  ores  and  break- 
ing ground  in  different  places  on  the  property  described  in  the  com- 
plaint ;  gives  the  amount  of  his  whole  bill  and  says  that  he  was  not  paid 
in  full;  that  he  has  a  balance  due  him  of  $87.80;  that  the  total  amount 
paid  him  was  $59.75.  Similar  evidence  is  given  as  to  each  claimant,  and 
is,  at  least,  prima  facie  sufficient  to  sustain  the  lien.  Defendant  also 
contends  that  the  plaintiff  should  be  required  to  take  satisfaction  first 
by  sale  of  the  mines,  in  which  Flack  has  no  interest,  and  leave  the  mill 
for  the  satisfaction  of  defendant's  claim,  if  the  mines  sell  for  sufficient 

to  satisfy  the  plaintiff's  claims.     This  is  the  rule  where  there  are  two 
W.  "&  M.— 7 


98  Water  and  Mineral  Cases.  [Oregon 

separate  and  distinct  properties  and  they  can  be  sold  separately  without 
depreciation  of  either.  But  the  mines  and  mill  constitute  one  property 
and  neither  can  be  sold  separately  without  a  depreciation  in  value  of 
the  other.  It  is  only  when  there  are  two  funds  or  properties  that  the 
doctrine  of  marshaling  securities  can  be  invoked.  Neither  is  this  relief 
suggested  by  the  pleadings  nor  asked  in  the  prayer  of  the  answer.  The 
facts,  however,  may  be  sufficient  to  entitle  defendant  Flack  to  be  subro- 
gated to  the  equities  of  the  plaintiff  upon  the  sale  of  the  property  or 
other  stage  of  the  proceeding,  if  such  relief  is  sought. 

We  find  no  error  in  the  rulings  of  the  trial  court.    The  decree  is  af- 
firmed. 


1909] 


Perry  v.  Acme  Oil  Company. 


99 


PERRY  v.  ACME  OIL  COMPANY. 

[Appellate  Court  of  Indiana.     Division  No.  2,  June  22,   1909.] 
44  Ind.  App.  207,  88  N.  E.  859. 

1.  Appellate  Practice — Waiver  of  Error. 

Assignments  of  error  not  discussed  in  appellant's  brief  will  be  deemed  to  be 
waived. 

2.  Pleading — General   Denial. 

Under  general  denial  it  may  be  shown  that  plaintiff  has  no  title  to  the 
property  for  the  conversion  of  which  the  action  is  brought,  but  that  title 
thereto   is   in   defendant. 

3.  Oil  Lease — Uncertainty  in  Description. 

A  deed  to  prospect  for  oil  and  gas  which  does  not  specifically  define  the  land 
granted  is  not  void  for  uncertainty,  but  within  certain  limits  gives  the  grantee 
the  right  to  select  the  land,  to  the  amount  granted,  upon  which  he  may  prospect. 

4.  Same — Right  of   Removal   of   Fixtures. 

Machinery  and  fixtures  placed  on  real  estate  leased  for  the  purpose  of  drill- 
ing for  gas  and  oil  do  not  become  permanent  fixtures  or  part  of  the  freehold, 
and   the  title  thereto  does   not  vest   in   the   lessor  upon   a  forfeiture  of  the   lease. 

5.  Same — Expiration   of  Term — Removal   of   Fixtures. 

Where  the  right  to  remove  property  "at  any  time"  has  been  expressly  reserv- 
ed in  an  oil  lease,  such  right  is  not  unlimited  as  to  time,  but  is  limited  to  a 
reasonable   time   after   the   expiration   of   the   lease. 

6.  Same — Forfeiture  at  Option  of  Lessor. 

The  forfeiture  clause  in  an  oil  lease  is  for  the  benefit  of  the  lessor,  and  he 
may  avail  himself  of  it  or  not  as  he  sees  fit.  If  he  does  not  declare  a  forfeiture, 
the   lease  remains   in   force,   and   the   lessee   may   enter   upon   the   leased   premises. 


CASE   NOTE. 

Machinery,  Pumps,  etc.,  for  Drilling 
Gas  and  Oil  Wells  Are  Trade  Fix- 
tures and   Removable  by  Lessee. 

I.     In  General,  99. 

II.     Where  Lease  is  Forfeited, 

103. 
III.     Question  of  Agreement  or 
Intent,   104. 

I.  In  General. 
Where  under  provision  of  the  lease, 
machinery  must  stay  upon  the  ground 
until  all  royalties  are  paid,  but  giving 
right  of  removal  after  payment  of  royal- 
ties,   the    machinery    does    not    lose    its 


character  as  a  removable  fixture,  and  the 
only  interest  the  lessors  have  therein 
is  a  lien  for  unpaid  royalty.  Cherokee 
Construction  Co.  v.  Bishop,  86  Ark.  489, 
112  S.  W.  189,  126  Am.  St.  Rep.  109S 
(1908). 

Machinery  and  fixtures  placed  on  real 
estate  leased  for  the  purpose  of  drilling 
for  gas  and  oil  do  not  become  permanent 
fixtures  or  parts  of  the  freehold  by 
reason  of  such  annexation  as  is  neces- 
sary to  develop  the  premises  according 
to  the  terms  of  the  lease,  and  title  to 
such  machinery  and  fixtures  does  not 
vest  in  the  lessor  because  of  a  forfeiture 
of  the  lease.  Perry  v.  Acme  Oil  Co., 
principal  case. 


100 


Water  and  Mineral  Cases. 


[Indiana 


Action  to  recover  value  of  certain  oil-well  fixtures  and  machinery. 
Judgment  for  plaintiff.     Affirmed. 

For  appellants — Mack  &  Son  and  Jay  A.  Hurdman. 

For  appellee — Joseph  S.  Dailey,  Abram  Simmons  and  Frank  C.  Dailey. 

WATSON,  J.  This  was  an  action  brought  by  the  appellee 
against  appellants  to  recover  the  value  of  certain  oil-well  fixtures  and 
machinery  alleged  to  have  been  converted  by  appellants  to  their  own  use. 
To  the  complaint  appellant  the  King  Oil  Company  filed  a  general  denial. 
Appellant  Perry  answered  in  two  paragraphs — first,  general  denial ;  sec- 
ond, affirmative  matter  in  avoidance  of  the  contract.  The  issues  were 
made  upon  the  complaint  and  separate  general  denials  of  each  of  the 
appellants.  The  cause  was  tried  before  a  jury.  A  verdict  for  appellee 
was  returned  in  the  sum  of  $800.  Each  appellant  moved  for  a  new  trial, 
but  the  motions  were  overruled  and  judgment  rendered  on  the  verdict. 


Under  a  gas  lease  giving  lessee  the 
right  to  remove  fixtures,  but  also  pro- 
viding that  if  lessee  abandoned  the  lease 
while  there  was  a  flowing  well  upon  the 
premises,  the  same  should  be  left  in  con- 
dition to  be  used  by  the  lessor,  the  lessee, 
upon  abandonment,  cannot  remove  the 
casing,  pipe,  etc.,  where  the  result  would 
be  the  cutting  off  of  the  supply  of  gas 
to  the  lessor.  Ohio  Oil  Co.  v.  Griest,  30 
Ind.  App.  84,  65  N.  E.  534   (1902). 

Machinery  in  a  drill  house  for  the 
temporary  purpose  of  boring  a  salt  well, 
and  removable  without  injuring  the  free- 
hold, is  not  a  fixture,  and  does  not  pass 
by  a  conveyance  of  the  land.  Bewick  v. 
Fletcher,  41  Mich.  625,  6  Mor.  Min.  Eep. 
117,  3  N.  W.  162,  32  Am.  Rep.  170 
(1879). 

Where  a  party  having  the  right  to 
remove  a  derrick  and  boring  machinery 
removed  parts  and  was  preparing  to  re- 
move the  rest,  when,  upon  the  landlord's 
objecting  to  the  removal,  a  contract  was 
signed  whereby  the  party  removing  the 
property  promised  to  return  and  replace 
it  in  the  same  condition  after  he  had 
used  it  elsewhere,  if  permitted  to  re- 
move it,  it  was  held  that  he  was  not  by 
such  contract  estopped  from  claiming 
title  and  the  right  of  possession  of  the 


property;  that  the  promise  to  put  it 
back  was  no  relinquishment  of  right  and 
no  recognition  of  any  title  in  the  land- 
lord; that,  as  the  landlord  had  no  title 
or  right  of  possession  to  the  property, 
the  agreement  was  without  consideration, 
and  not  binding  upon  the  lessee.  Bewick 
v.  Fletcher,  41  Mich.  625,  6  Mor.  Min. 
Rep.  117,  3  N.  W.  162,  32  Am.  Rep.  170 
(1879). 

While  there  are  certain  general  prin- 
ciples applicable  to  cases  arising  between 
landlord  and  tenant,  as  to  what  annex- 
ations are  removable  and  what  are  not, 
yet  each  case  must  in  a  great  measure 
depend  upon  its  own  peculiar  circum- 
stances and  the  intention  of  the  parties, 
and  the  time  and  manner  of  making  the 
annexation,  which  will  be  of  controlling 
influence  in  the  correct  disposition  of 
the  question.  Conrad  v.  Saginaw  Min. 
Co.,  54  Mich.  249,  52  Am.  Rep.  817 
(1884). 

Under  a  lease  conferring  exclusive 
right  to  produce  oil  and  gas,  permitting 
the  lessee  to  go  upon  the  land  to  make 
necessary  erections,  etc.,  with  the  right 
to  remove  any  and  all  tools,  boilers,  en- 
gines, and  all  casings  to  the  wells  and 
drive-pipe  if  the  lessor  should  refuse  to 
pay   a   fair   price   therefor,   it   was   held 


1909] 


Perry  v.  Acme  Oil  Company. 


101 


The  only  assignments  of  errors  discussed  by  appellants  in  their  brief 
are,  first,  sustaining  the  demurrer  to  appellant  Perry's  second  paragraph 
of  answer ;  and,  second,  the  refusal  by  the  court  to  give  instructions  No. 
2  and  No.  J  requested  by  Perry.  The  other  assignments  of  error  are 
therefore  deemed  to  be  waived.  Hamilton  v.  Hanneman,  20  Ind.  App. 
16,  50  N.  E.  43;  Hoover  v.  Weesner,  147  Ind.  510,  45  N.  E.  650,  46  N. 
E.  905 ;  Ewbank,  Appellate  Practice,  §  188. 

The  complaint  is  in  one  paragraph,  and  alleges  the  corporate  existence 
of  the  appellee  and  the  appellant,  the  King  Oil  Company,  under  the  laws 
of  the  state  of  Indiana.  It  further  avers  that  on  the  26th  day  of  Sep- 
tember, 1899,  William  M.  Perry  and  wife  executed  and  delivered  to  the 
appellee  an  oil  and  gas  lease  and  contract  whereby  the  Perrys  granted 
to  appellee  one  hundred  acres  in  Wells  county,  Ind.,  for  the  purpose 
of  drilling  and  operating  for  gas  and  oil,  with  full  right  to  enter  there- 
on and  erect  and  maintain  necessary  buildings.  Appellee  avers  that 
it  entered  upon  said  land  in  pursuance  of  said  contract,  and  took  posses- 


that  those  articles  retained  their  charac- 
ter of  personalty  after  annexation  to 
the  land,  and  as  such  were  subject  to 
mortgage  and  conveyance  by  the  lessee. 
Kribbs  v.  Alford,  120  N.  Y.  519,  24  N. 
E.   811    (1890). 

The.  tubing,  casing,  and  drive-pipe  of 
a  gas  or  oil  well  are  trade  fixtures,  and 
in  regard  to  such  oil  and  gas  leases  are 
not  governed  by  the  same  rules  as  apply 
to  agricultural  leases.  They  may  be  re- 
moved at  any  time  before  the  expiration 
of  the  lease  or  when  the  lease  has  been 
abandoned,  the  land  producing  neither 
gas  or  oil.  Silver  v.  Globe  Window  Glass 
Co.,  21  Ohio  Cir.  Ct.  R.  284,  11  Ohio  Cir. 
Dec.    784     (1900). 

In  Shellar  v.  Shivers,  171  Pa.  St.  569, 
IS  Mor.  Min.  Rep.  200,  33  Atl.  95  (1895), 
Mcllvaine,  P.  J.,  in  court  below,  said: 
"I  do  not  think  there  can  be  any  doubt 
that  the  casing  in  an  oil  or  gas  well,  the 
derrick,  and  other  appliances  used  in 
drilling  and  operating  it,  are  trade  fix- 
tures, and  can  be  removed  by  the  owner 
or  lessee  during  the  term  of  the  lease. 
On  the  other  hand,  I  think  there  can  be 
no  doubt  that  they  are  such  fixtures, 
that  they  become  the  property  of  the 
landowner,  if  not  removed  by  the  lessee 
during   the  term,   or   at   least   within   a 


reasonable  time  after  its  expiration. 
These  two  propositions  are  both,  of 
course,  subject  to  modification  by  the 
agreement  of  the  parties.  Are  they  modi- 
fied in  this  case?  Because,  if  they  are 
not,  then  the  defendants  had  no  right 
to  enter  upon  the  plaintiff's  land  for 
the  purpose  of  removing  the  fixtures  in 
question.  The  lease  provides  that  the 
lessee  shall  have  'the  right  to  remove, 
at  any  time,  any  or  all  machinery,'  etc, 
It  is  claimed  that  the  words  'at  any 
time'  must  be  given  their  fullest  meaning, 
and  that  the  defendants'  right  to  remove 
these  fixtures,  by  agreement  of  the  lessor, 
was  unlimited  as  to  time,  and  that  al- 
though their  entry  to  remove  the  casing 
was  made  four  years  after  the  lease  ex- 
pired, and  five  years  and  six  months  after 
the  well  was  completed  and  found  to 
be  of  no  use  as  an  oil  or  gas  well,  yet 
their  entry  and  purpose  were  lawful  as 
they  had  the  right  to  remove  any  or  all 
fixtures  at  any  time.  We  think  that  this 
was  not  the  intention  of  the  parties,  as 
gathered  from  the  language  of  the  lease. 
The  lease  was  for  a  fixed  period,  to  be 
extended  to  an  indefinite  period,  and  the 
extension  to  depend  upon  what  the  fu- 
ture might  develop.  The  right  to  enter 
at  any  time,   and  the   right   to  remove 


102 


Water  and  Mineral  Cases. 


[Indiana 


sion  thereof  for  the  purpose  above  set  out,  and  drilled  and  completed 
two  wells  thereon,  and  equipped  said  wells  with  casings  and  drive  pipe  to 
the  value  of  $928.30,  and  that  appellants  took  possession  of  said  wells, 
casing,  drive  pipe,  and  other  materials,  and  wrongfully  and  unlawfully 
converted  them  to  their  own  use.  To  this  complaint  appellants  filed 
separate  demurrers,  but  no  rulings  were  had  thereon.  Appellant  the 
King  Oil  Company  then  filed  its  separate  answer  in  general  denial,  and 
William  M.  Perry  filed  his  separate  answer  in  two  paragraphs — first, 
general  denial;  second,  admitting  that  he  and  his  wife  executed  said 
contract  as  set  out  in  the  complaint,  and  further  averring  that  appellee 
submitted  a  blank  printed  form  of  contract  for  him  and  his  wife  to 
execute,  which  contained,  among  other  provisions,  the  following:  "The 
second  party  shall  have  the  right,  free  of  charge,  to  use  sufficient  gas,  oil, 
and  water  to  run  all  machinery  for  operating  said  well,  also  the  right 
to  remove  all  property  at  any  time."  That  there  was  inserted  therein 
in  writing  a  provision  as  follows :    "It  is  further  agreed  by  second  party 


machinery  at  any  time,  was  predicated 
of  that  part  of  the  term  that  was  uncer- 
tain; that  is,  after  three  years  the  lessee 
had  the  right,  at  any  time,  to  enter  and 
drill  additional  wells,  if  oil  or  gas  was 
being  produced  in  paying  quantities,  and 
had  the  right,  although  the  three  years 
had  passed,  to  remove  the  machinery 
and  fixtures  after  or  when  the  well 
should  cease  to  produce  oil  or  gas  in 
paying  quantities.  If  this  construction 
is  correct  then  the  rule  of  law  as  to  re- 
moval of  fixtures  would  be  as  in  cases 
where  the  tenancy  is  uncertain  in  dura- 
tion, as  when  it  depends  upon  a  con- 
tingency, and  that  is  that  the  removal 
must  be  made  within  a  reasonable  time, 
or,  in  other  words,  the  law  in  such  cases 
allows  the  tenant  a  reasonable  time  for 
the  removal  of  fixtures.  Here  the  lessees, 
if  oil  or  gas  had  been  found  in  paying 
quantities,  would  have  had  a  reasonable 
time  within  which  to  draw  their  casing 
and  remove  their  derricks  after  it  had 
become  apparent  that  the  operation  of 
the  wells  was  no  longer  profitable,  let 
this  be  soon  or  long  after  the  expiration 
of  the  three  years.  At  any  time  when 
they  thought  it  would  no  longer  pay  to 
operate    their    wells,    which    had    been 


producing  oil  or  gas  in  paying  quantities, 
they  had  a  right  to  remove  the  fixtures 
connected  with  such  wells.  Under  the 
facts  as  we  have  them  in  this  case,  how- 
ever, operations  ceased  on  this  lease 
in  April,  1887.  A  dry  hole  was  found. 
Nothing  was  done  between  the  comple- 
tion of  this  well  and  the  time  when  the 
lease  expired,  in  November,  1888;  and 
after  that  four  years  are  allowed  to  ex- 
pire before  an  attempt  to  remove  these 
fixtures  was  made.  In  our  opinion,  this 
was  too  late.  If,  under  the  words  'at 
any  time,'  the  lessee  could  take  four 
years  after  the  expiration  of  the  lease 
to  remove  his  fixtures,  he  could  as  well 
take  twenty  years.  To  say  that  the 
lessor  could  prevent  this  by  giving  notice 
that  the  fixtures  must  be  moved  within 
a  certain  time  is  to  read  something  into 
the  contract  that  is  not  there." 

The  landlord  under  a  gas  and  oil  lease 
does  not  acquire  title  to  personal  prop- 
erty of  lessee  left  on  the  premises,  by 
judgment  in  ejectment.  Sattler  v.  Op- 
perman,  14  Pa.  Sup.  Ct.  32   (1900). 

Under  lease  for  purposes  of  exploring 
for  gas  and  oil,  engine,  wooden  oil-well 
rig,  wooden  oil  tanks,  casings,  pipes, 
belting,    and    articles   of   like    character, 


1909] 


Perry  v.  Acme  Oil  Company. 


103 


that  when  they  fail  to  operate  any  one  well  for  a  period  of  sixty  days, 
or  pay  first  party  one  dollar  per  day  from  the  time  they  fail  to  operate 
said  well,  the  ten  acres  on  which  said  well  is  located  shall  be  canceled 
and  returned  to  first  party.  Second  party  shall  have  the  right  to  re- 
move their  machinery  from  the  said  ten  acres."  And  that  appellee  on 
the  12th  day  of  December,  1902,  ceased  to  operate  said  two  wells,  and 
wholly  abandoned  the  premises,  and  removed  therefrom  all  of  its  ma- 
chinery, and  so  remained  therefrom  thereafter.  That  on  the  15th  day 
of  April,  1903,  he  took  possession  of  said  wells,  casing,  and  drive  pipe, 
and  employed  his  codefendant  to  operate  the  wells.  Appellant  further 
avers  that  he  did  not  appropriate  to  his  own  use  any  machinery  belonging 
to  the  appellee,  but  only  property  which  was  attached  to  and  formed 
part  of  the  real  estate  and  which  could  not  be  removed  therefrom  without 
damage.  To  this  second  paragraph  of  answer  appellee  filed  a  demurrer 
which  was  sustained  by  the  trial  court  and  proper  exceptions  reserved  as 
to  the  ruling  thereon.     Under  his  answer  of  general  denial,  appellant 


necessary  in  the  prosecution  of  the  work, 
do  not  become  permanent  fixtures,  and 
are  removable  by  the  lessee.  Gartland  v. 
Hickman,  56  W.  Va.  49,  49  S.  E.  14,  67 
L.  R,  A.  694   (1904). 

II.  Where  Lease  Is  Forfeited. 
A  tenant  has  the  same  right  of  removal 
of  fixtures  where,  after  the  expiration 
of  the  lease  he  remains  in  possession  as 
a  tenant  at  will,  as  he  had  during  the 
term.  Brown  v.  Reno  Electric  L.  &  P. 
Co.,   55    Fed.   229    (1893). 

The  rule  that  a  lessee  must  remove 
his  fixtures  during  the  term  does  not  ap- 
ply where  a  lease  is  forfeited,  for  in  such 
case,  the  term  is  not  closed  by  the  act 
of  a  tenant,  and  he  should  have  a 
reasonable  time  thereafter  within  which 
to  remove  his  fixtures.  Updegraff  v. 
Lesem,  15  Colo.  App.  297,  20  Mor.  Min. 
Rep.  620,  62  Pac.  342   (1900). 

Under  a  lease  providing  for  removal 
of  fixtures  and  appliances  upon  forfeiture 
it  is  not  error  for  the  court  to  refuse  to 
permit  casings  in  oil  wells  to  be  removed 
when  the  effect  of  such  removal  would 
be  to  destroy  the  well.  Powers  v.  The 
Bridgeport  Oil  Co.,  238  111.  397,  87  N. 
E.  381    (1909). 

Under  a  lease  giving  the  right  of  re- 


moval of  mining  machinery,  etc.,  and 
also  providing  that  a  discontinuance  of 
work  for  twelve  months  should  work  a 
forfeiture  of  the  lease,  the  lessee  had  the 
right  to  remove  the  fixtures  during  the 
term;  but  where  he  abandoned  the  lease 
without  removing  the  fixtures,  they 
became  the  property  of  the  landlord,  and 
were  not  thereafter  liable  to  be  levied 
upon  for  debts  of  the  lessee.  Davis  V. 
Morse,    38    Pa.    St.    346     (1861). 

Where  a  lease  is  forfeited,  the  lessee 
has  a  reasonable  time  thereafter  within 
which  to  remove  his  fixtures.  Cassell 
v.  Crothers,  193  Pa.  St.  359,  20  Mor. 
Min.  Rep.   160,  44  Atl.  46    (1899). 

Where  the  landlord  enters  and  termi- 
nates a  tenancy  at  will,  he  acquires  no 
right  to  the  tenant's  fixtures,  and  is 
liable  for  their  value  if  he  takes  and  con- 
verts the  same.  Cassell  v.  Crothers,  193 
Pa.  St.  359,  20  Mor.  Min.  Rep.  160,  44 
Atl.  46    (1899). 

Where  an  oil  and  gas  lease  provides 
that  machinery,  etc.,  may  be  removed  by 
the  lessee  he  has  the  right  to  do  so  al- 
though he  may  have  defaulted  in  other 
covenants  of  the  lease.  He  may  have 
failed  to  fulfil  his  contract  obligation  to 
develop   wells,   etc.,  but  that  would  not 


104 


Water  and  Mineral  Cases. 


[Indiana 


Perry  could  have  shown  all  the  facts  set  out  in  his  second  paragraph  of 
answer  tending  to  defeat  appellee's  claim  to  the  property.  Ford  v. 
Griffin,  ioo  Ind.  85,  87;  Swope  v.  Paul,  4  Ind.  App.  463,  31  N.  E.  42, 
and  cases  there  cited ;  Nowlin  v.  State,  30  Ind.  App.  277,  280,  66  N.  E. 
54.  It  was  not  reversible  error,  therefore,  to  sustain  the  demurrer  to 
the  second  paragraph  of  answer.  Wickwire  v.  Town  of  Angola,  4  Ind. 
App.  253,  30  N.  E.  917;  Kelley  v.  Kelley,  8  Ind.  App.  606,  34  N.  E. 
1009;  Crum  v.  Yundt,  12  Ind.  App.  308,  40  N.  E.  79;  Board  v.  State,  148 
Ind.  675,  48  N.  E.  226. 

The  terms  of  the  lease  pertinent  and  necessary  to  the  determination 
of  the  questions  herein  involved  have  been  set  out  verbatim  above  in 
the  statement  of  the  complaint.  Appellee  contends  that  the  above-quoted 
clause  providing  for  cancellation  of  the  lease  in  the  event  of  failure -to 
operate  the  wells  for  sixty  days  or  pay  one  dollar  per  day  from  the 
time  of  such  failure  is  unenforceable  because  of  uncertainty  in  the  de- 
scription of  the  tracts  to  be  released.  It  may  well  be  under  the  author- 
ities cited  by  appellee  that  an  action  to  quiet  title  to  the  10-acre  tracts 
would  lie  because  of  uncertainty  in  the  description.  But  the  case  at 
bar  is  not  one  of  that  kind.  It  is  a  suit  for  conversion  of  personal 
property.  By  the  terms  of  the  lease  appellee  covenanted  to  surrender 
the  10-acre  tract  upon  which  any  well  was  located  upon  failure  for  sixty 
days  to  operate  said  well  or  pay  one  dollar  per  day  from  the  time  of 
such  failure  to  operate.  Within  limits,  this  gave  appellee  the  power  to 
select  the  ten  acres  which  said  well  would  be  deemed  to  hold.  In  the 
case  of  Jones  v.  Mount,  166  Ind.  570,  77  N.  E.  1089,  the  court  said  : 
"It  is  obvious  that  such  a  case  as  this  does  not  fall  within  the  principle 
of  that  class  of  cases  in  which  it  is  adjudged  that  nothing  passes  by  the 
deed  where  the  terms  are  so  uncertain  that  the  intention  of  the  parties 
cannot  be  ascertained.     It  will  be  observed  that  the  contract  contains  a 


prevent  the  removal  of  personal  property, 
the  covenants  being  distinct.  Patterson 
v.  Hausbeck,  8  Pa.  Super.  Ct.  Rep.  36 
(1898). 

Under  a  lease  granting  privilege  of 
removal  of  fixtures  at  any  time,  the 
lessee  has  the  right  to  remove  them 
within  a  reasonable  time  after  the  lease 
becomes  forfeited  for  nonpayment  of 
rent.  Gartland  v.  Hickman,  56  W.  Va. 
49,  49  S.  E.  14,  67  L.  R.  A.  694   (1904). 

III.   Question    of   Agreement   or 
Intent. 

The  removability  of  fixtures  is  not 
controlled   by   their   size    or   manner   of 


erection  or  fixing  to  the  property,  but 
by  the  question  whether  they  are  designed 
for  the  purposes  of  trade  or  not.  Van 
Ness  v.  Pacard,  27  U.  S.  (2  Pet.)  137, 
7  L.  Ed.  374  (1829);  Seeger  v.  Pettit, 
77  Pa.  St.  437,  18  Am.  Rep.  452  (1875). 
The  right  of  removal  of  fixtures  from 
a  mining  claim  is  subject  to  the  agree- 
ment of  the  parties  or  to  the  local  custom 
and  usage.  Merritt  v.  Judd,  14  Cal. 
59,  6  Mor.  Min.  Rep.  62   (1859). 

There  is  no  universal  test  whereby  the 
character  of  what  is  claimed  to  be  a 
fixture  can  be  determined  in  the  abstract. 
Neither  the  mode  of  annexation  nor  the 


1909] 


Perry  v.  Acme  Oil.  Company. 


105 


covenant  upon  the  part  of  the  grantee  to  surrender.  This,  within  limits, 
gave  the  grantee  the  power  of  selection,  and  the  mere  fact  that  the  land 
which  he  might  select  to  reconvey  was  originally  uncertain  does  not 
prevent  an  enforcement  of  the  undertaking  according  to  its  terms" — 
citing  Smith  v.  Furbish,  68  N.  H.  123,  44  Atl.  398,  47  L.  R.  A.  226; 
Gardner  v.  Webster,  64  N.  H.  520,  15  Atl.  144;  Dull  v.  Blum,  68  Tex. 
299,  4  S.  W.  489;  Nye  v.  Moody,  70  Tex.  434,  8  S.  W.  606;  Dohoney 
v.  Womack,  1  Tex.  Civ.  App.  354,  19  S.  W.  883,  20  S.  W.  950;  Waters 
v.  Bew,  52  N.  J.  Eq.  787,  29  Atl.  590;  Lane  v.  Allen,  162  111.  426,  44 
N.  E.  831 ;  1  Jones,  Real  Property  in  Conveyancing,  334.  Continuing 
the  opinion,  the  court  further  said :  "There  is  no  more  legal  uncer- 
tainty in  such  a  matter  as  this  than  there  is  in  the  case  of  a  way  of  neces- 
sity, where  the  reservation  is  implied  as  resting  on  the  presumed  in- 
tention of  the  parties."  Therefore,  since  appellee  had  the  power  to 
select  the  particular  tract  to  reconvey,  it  cannot  be  heard  to  say  that 
the  clause  is  unenforceable  because  of  uncertainty  in  the  description. 
Machinery  and  fixtures  placed  on  real  estate  leased  for  the  purpose  of 
drilling  for  gas  and  oil  do  not  become  permanent  fixtures  nor  parts 
of  the  freehold  by  reason  of  such  annexation  as  is  necessary  to  develop 
the  premises  according  to  the  terms  of  the  lease,  and  title  to  such  machin- 
ery and  fixtures  does  not  vest  in  the  lessor  because  of  a  forfeiture  of  the 
lease.  Montpelier  Light  &  Water  Co.  v.  Stephenson,  22  Ind.  App.  175, 
53  N.  E.  444;  Gartland  v.  Hickman,  56  W.  Va.  75,  49  S.  E.  14,  67  L.  R.  A. 
694;  Siler  v.  Globe  Window  Glass  Co.,  21  Ohio  Cir.  Ct.  R.  284.  Where 
the  right  to  remove  property  "at  any  time"  has  been  expressly  reserved  in 
the  lease,  such  a  right  is  not  unlimited  as  to  time,  but  is  limited  to  a 
reasonable  time  after  the  expiration  of  the  lease.  Shellar  v.  Shivers, 
171  Pa.  569,  18  Mor.  Min.  Rep.  260,  33  Atl.  95.  It  has  been  decided 
in  this  state  that  where  a  lease  provided  for  the  drilling  or  operating  of 
oil  or  gas  wells,  or,  on  failure  to  so  drill  or  operate,  to  pay  an  agreed 
sum  per  day  to  the  lessor  for  such  failure  or  delay,  and  with  the  further 
provision  that  upon  failure  to  drill  or  operate,  or  pay  the  agreed  sum, 
the  lease  to  become  null  and  void,  such  a  provision  is  for  the  benefit 
of  the  lessor,  and  he  may  either  declare  a  forfeiture  of  the  lease  or  pro- 
ceed against  the  lessee  for  failure  to  perform  the  covenants  of  the  lease. 


manner  of  use  is  in  all  cases  conclusive. 
It  must  usually  depend  upon  the  express 
or  implied  understanding  of  the  parties 
concerned.  Wheeler  v.  Bedell,  40  Mich. 
■693    (1879). 

The  question  as  to  whether  certain 
fixtures  are  or  are  not  part  of  the  realty 
may   depend  upon   the   intention   of   the 


parties,  and  they  may  not  become  a  part 
of  the  realty  although  attached  by 
masonry  or  other  permanent  means  if  the 
intention  of  the  parties  was  that  they 
should  remain  the  personal  property  of 
the  lessee.  Lake  Superior  Ship  Canal, 
etc.  Co.  v.  McCann,  86  Mich.  106,  48 
N.   W.   692    (1891). 


106  Wateb  and  Mineral  Cases.  [Indiana 

Hancock  v.  Diamond  Glass  Co.,  162  Ind.  146,  152,  70  N.  E.  149.  To  the 
same  effect,  see  also,  Edmonds  v.  Mounsey,  15  Ind.  App.  399,  18  Mor. 
Min.  Rep.  384,  44  N.  E.  196  and  cases  cited ;  Woodland  Oil  Co.  v.  Craw- 
ford, 55  Ohio  St.  161,  44  N.  E.  1093,  34  L.  R.  A.  62;  Wills  v.  Manufac- 
turers' Nat.  Gas  Co.,  130  Pa.  222,  18  Atl.  721,  5  L.  R.  A.  603;  Thorn- 
ton, The  Law  Relating  to  Oil  and  Gas,  §  151.  In  the  case  at  bar  it  does 
not  appear  that  appellant  took  any  steps  to  declare  a  forfeiture  or  give 
appellee  any  notice  of  such  an  intention.  Consequently  at  the  time  when 
appellant  Perry  refused  to  permit  appellee  to  enter  the  leased  premises 
for  the  alleged  purpose  of  drawing  the  pipe  from  the  wells  the  lease  was 
still  in  effect,  and  the  title  to  the  fixtures  used  in  operating  the  wells  was 
in  appellee.  Therefore  the  trial  court  did  not  err  in  refusing  to  instruct 
the  jury  that  title  to  the  fixtures  vested  in  appellant  Perry  after  sixty  days' 
failure  to  operate  said  wells  or  pay  $1  per  day  in  lieu  thereof,  or  that  the 
title  vested  in  said  Perry  immediately  upon  the  happening  of  such  default. 
Hancock  v.  Diamond  Glass  Co.,  supra. 

It  does  not  appear  that  there  was  any  reversible  error  on  the  part 
of  the  trial  court.    The  judgment  is  therefore  affirmed. 

Judgment  affirmed. 


1909] 


People  ex  eel.  v.  Drainage  Distkict. 


107 


PEOPLE  ex  rel.  CHAPMAN  v.  SACRAMENTO  DRAINAGE  DISTRICT. 

[Supreme    Court   of    California,    March    24,    1909.] 
155  Cal.  373,  103  Pae.  207. 

1.  Drainage  Districts — Historical   Review  of. 

History  of  the  establishment,  and  development  of  reclamation  or  drainage  dis- 
tricts in  California. 

2.  Constitutional    Law— Act  Creating   Drainage   Districts. 

Statute  of  1905  (Sess.  Laws  443,  Hen.  G.  L.  p.  374),  creating  the  Sacramento 
Drainage  District,  containing  lands  situated  in  ten  different  counties,  for  the 
purpose  of  promoting  drainage  therein,  providing  for  the  election  of  commissioners 
■with  various  duties  and  powers,  for  the  levying  of  assessments  on  lands  benefited 
to  pay  the  cost  of  the  reclamation  thereof,  and  creating  a  board  of  river  control 
with  powers  for  straightening  and  controlling  the  Sacramento  and  San  Joaquin 
Rivers,  is  not  unconstitutional. 

3.  Same — Power    of    Legislature    Over    Drainage. 

The  legislature  has  the  power  to  provide  for  the  reclamation  of  overflowed 
land  and  to  impose  a  tax  thereupon  in  proportion  to  the  estimated  special  benefits 
which  those  lands  will  receive  from  the  work  done. 

4.  Same — Work   Must   Be   of   Public  Character. 

To  sustain  such  law  it  must  appear  that  the  character  of  the  work  is  such 
that  its  performance  confers  some  general  benefit  on  the  public  as  well  as  a  private 
benefit  on  the  landowner. 


CASE    NOTE. 

Legal  Character  of  Drainage  and 
Reclamation  Districts. 

I.  State  Agencies,  108. 
II.  Not  Corporations,  113. 

III.  Creation  by  Special  Laws,  115. 

IV.  Political       Subdivisions       of 

State,  116. 
V.  Public  Corporations,  117. 
VI.  Municipal  Corporations,  120. 
VII.  Private  Corporations,  120. 
VIII.  Quasi  Corporations,  121. 

As  to  constitutional  power  to  estab- 
lish drains  and  drainage  districts,  see 
note  to  Chicago  B.  &  Q.  R.  Co.  v.  Board 
of  Supervisors  of  Appanoose  County, 
post,   p.    459. 

As  to  source  of  power  legislative  power 
to   drain  lands,   see  note  to   Coffman  v. 

St.   Frances   Drainage   District,   p.   , 

vol.  3,  this  series. 


As  to  notice  required  as  due  process 
of  law,  see  note  to  Ross  v.  Board  of 
Supervisors  of  Wright  County,  post,  p. 
358. 

As  to  rule  that  public  benefit  and 
interest   must   be   involved,   see   notes   to 

Campbell   v.   Youngson,   p.   ,   vol.   2, 

this   series. 

As  to  inclusion  or  exclusion  of  lands 
in  drainage  district,  see  note  to  Hull 
v.  Sangamon  River  Drainage  District, 
post,    p.    593. 

As  to  whether  action  in  regard  to 
drainage  is  legislative  or  judicial,  see 
note  to  Smith  v.  Claussen  Park  Drain- 
age &  Levee  District,  p. ,  vol.  2,  this 

series. 

As  to  power  of  commissioners,  etc.,  see 
note  to  Seibert  v.  Lovell,  post,  p.  261. 

As    to    conclusiveness    of    decision    ol 


108 


Water  and  Mineral  Cases. 


[California 


5.  Swamp   and  Overflowed    Lands — Extent  of  Jurisdiction   Over — Arkansas 

Act — Mexican  Grants. 
The   legislature   of   the   state   has   jurisdiction   over   all   overflowed   lands   in   the 
state  whether  acquired  under  the  Arkansas  Act  or  by  Spanish  or  Mexican  grant. 

6.  Reclamation   Districts — Not  Corporations,   But  State  Agencies — May   Be 

Created  by  Special  Laws. 
A    reclamation    district    is    not    a    municipal    corporation    or    a    corporation    for 
municipal  purposes  within  the  prohibition  of  article  I,   section    11,  nor  article  II, 
section  6,  of  the  Constitution,  but  is  a  governmental  agency  to  carry  out  a  specific 
public  purpose. 

7.  Special   Law — Necessity  for. 

A  clear  showing  is  required  on  the  face  of  the  law  itself  before  the  courts  will 
say  that  a  special  law  was  not  required. 

8.  Novel    Litigation — Scrutinized  with   Care. 

The  fact  that  legislation  is  novel,  demands  of  the  court  that  it  be  scrutinized 
with  exceptional  care,  but  it  does  not  dictate  its  condemnation. 

9.  State  Control  of  Waterways — Assessment  for  Improving. 

In  the  matter  of  governmental  power  and  control,  the  water  highways  of  the 
state  do  not  differ  from  the  land  highways,  and  legislation  which  exacts  contribu- 
tions from  lands  adjacent  to  the  inland  waterways  stands  upon  the  same  ground  as 
that  which  exacts  similar  contributions  for  land  highways. 

10.  Local    Improvements — Power  to  Assess  for. 

The  source  of  the  power  of  the  state  to  assess  lands  for  local  improvements 
is  the  governmental  power  of  the  state  to  tax,  and  to  specially  tax  for  a  public 
purpose,  where  the  work  to  be  done  will  confer  a  special  benefit  upon  the  property 
of  the  particular  landowner  as  distinguished  from  the  general  good  which  it  will 
work  to  all. 

11.  Constitutional    Law — Title   of   Act. 

Where  the  act  contains  more  than  one  subject-matter  and  the  title  does  not 
express  all,  the  whole  act  is  not  void.  The  purpose  of  requiring  the  subject-matter 
to  be  expressed  in  the  title  is  to  prevent  and  check  deceptive  litigation. 


drainage  commissioners  and  other  offi- 
cers, see  note  to  Chapman  &  Dewey 
Land   Co.  v.  Wilson,  vol.   2,  this  series. 

As  to  collateral  attack  on  drainage 
proceedings,  see  note  to  Chapman  & 
Dewey  Land  Co.  v.  Wilson,  vol.  2,  this 
series. 

As  to  waiver  of  irregularities  in  drain- 
age proceedings,  see  note  to  Smith  v. 
Claussen  Park  Drainage  &  Levee  Dis- 
trict, p.  — ,  vol.  2,  this  series. 

As  to  bonds  of  drainage  districts,  see 
note   to   Sisson  v.   Board  of   Supervisors 

of  Buena  Vista  County,  p.  ,  vol.  3, 

this    series. 

For  historical  review  of  reclamation 
districts  in  California,  see  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict,  the  principal  case. 


I.    State  Agencies. 

Drainage  and  reclamation  districts 
have  been  variously  classed  as  public 
corporations,  municipal  corporations, 
quasi  corporations,  private  corporations 
and  in  later  cases  declared  not  to  be 
corporations,  but  state  agencies  for  the 
accomplishment  of  state  purposes  and 
public  work.  The  various  cases  and 
holdings  are  given  in  the  following  sub- 
divisions. 

If  reclamation  districts  can  be  called 
corporations  at  all,  they  are  properly 
called  corporations  for  municipal  pur- 
poses. That  phrase  means  no  more  than 
that  they  are  state  organizations  for 
state  purposes.  They  are  certainly  not 
municipal  corporations  in  the  strict 
sense.  They  have  not  the  power  of  local 
government,    which    is     the     distinctive 


1909] 


People  ex  eel.  v.  Drainage  District. 


109 


12.  Reclamation    Districts — Power  to  Abolish. 

The  legislature,  having  due  regard  to  vested  rights,  may  put  all  existing  drain- 
age or  reclamation  districts  out  of  existence  and  create  a  board  to  manage  all  fur- 
ther reclamation. 

13.  Legislative    Act — Presumption    as    to. 

Where  the  taking  of  evidence  is  necessary  before  action  by  the  legislature,  the 
court  will  conclusively  presume  it  was  taken. 

14.  Reclamation   Districts — Legislature   May   Fix   Boundaries. 

The  legislature  has  power  to  fix  a  district  for  the  drainage  or  reclamation  of 
lands,  without  any  hearing  as  to  benefits,  for  the  purpose  of  assessing  upon  the 
lands  within  the  district  the  cost  of  a  local  public  improvement. 

15.  Constitutional    Law — Conferring   Judicial    Powers. 

The  creation  of  a  board  of  drainage  commissioners,  with  quasi  judicial  powers, 
that  is,  to  hear  and  determine  objections  to  and  to  equalize  assessments,  is  not  un- 
constitutional. 

16.  Same — Due   Process  of   Law. 

Where  an  opportunity  to  be  heard  either  before  or  after  the  levying  of  the  as- 
sessment is  given,  there  is  no  taking  of  property  without  due  process  of  law. 

17.  Drainage    Commissioners — Qualifications    of — Property    Owner. 

Owning  property  within  the  district  is  not  such  an  interest  as  disqualifies  one 
from  acting  as  commissioner  of  the  district. 

18.  Constitutional    Law — Double    Taxation — Special    Assessments. 
Special  assessments  for  local   improvement  is   not  double  taxation,   for  they  are 

levied  for  the  special   benefit  the  land  receives  from   the   improvement  in  addition 
to  the  general  benefits  for  which  general  taxes  are  levied. 

19.  Same — Impairing    Obligation    of   Contract. 

Obligation  of  contract  is  not  impaired  by  a  state  changing  its  plans  for  the 
reclamation  of  overflowed  lands,  and  creating  new  and  different  agents  and  man- 
datories. 

20.  Same — Elections  in    Reclamation    Districts — Property   Qualification. 

A  property  qualification  in  order  to  be  a  voter  at  elections  in  drainage  or  reclama- 
tion districts  does  not  violate  a  constitutional  inhibition  against  requiring  a  prop- 
erty qualification  for  voters.  The  legislature  permits  the  landowners  to  appoint 
their  own  agents,  and  the  method  which  it  imposes  in  making  the  selection  is 
wholly  within   its   own   control. 


purpose  and  distinguishing  feature  of 
a  municipal  corporation  proper.  All 
definitions  of  such  include  as  essential  a 
territory  which  is  a  portion  of  the  state 
and  the  inhabitants  thereof,  and  the 
purpose  to  furnish  local  government  for 
such  inhabitants  and  such  territory. 
The  law  does  not  require  inhabitants  in 
a  swamp  land  or  reclamation  district, 
and  if  there  are  residents,  it  in  no  way 
affects  them  as  such.  Those  who  own 
no  land  within  the  district  are  not  af- 
fected by  the  organization  at  all.  The 
owners  and  the  only  ones  affected  by 
the  formation  of  the  district  may  be 
nonresident  aliens.  Residents  as  such 
have  no  voice  in  the  management  of  the 


supposed  corporation.  There  is  no  local 
government  beyond  that  exercised  over 
a  specific  district  whenever  street  work 
is  done  and  property  owners  are  charged 
with  cost  thereof.  Certainly  these 
districts  are  not  municipal  corporations 
as  that  term  is  used  in  the  Constitution, 
prohibiting  the  formation  of  corporations 
by  special  acts.  They  are  neither  public 
nor  private  corporations  as  defined  in 
the  California  Civil  Code.  They  are 
special  organizations  to  perform  certain 
work  which  the  policy  of  the  state  re- 
quires or  permits  to  be  done,  and  to 
which  the  state  has  given  a  certain 
degree  of  discretion  in  making  the  im- 
provements contemplated.     They  are  not 


110 


Water  and  Mineral  Cases. 


[California 


Quo  warranto  to  test  validity  of  drainage  district  formed  by  direct  act 
of  legislature.    Judgment  for  defendant.    Affirmed. 

For  appellant — U.  S.  Webb,  Attorney  General,  Arthur  C.  Huston,  W. 
H.  Grant  and  C.  E.  McLaughlin. 

For  respondents — Devlin  &  Devlin,  and  George  &  Hinsdale. 

HENSHAW,  J.  This  is  proceeding  in  quo  warranto,  brought  under 
section  803,  Code  Civ.  Proc.  That  section  authorizes  the  attorney  gen- 
eral in  the  name  of  the  people  of  the  state,  upon  his  own  initiative  or  upon 
that  of  a  private  person,  to  prosecute  an  action  against  any  person  ''who 
usurps,  intrudes  into,  or  unlawfully  holds  or  exercises  any  public  office, 
civil  or  military,  or  any  franchise  within  this  state." 

In  1905  (St.  1905,  p.  443,  c.  368),  the  legislature  passed  an  act  entitled 
"An  act  to  create  a  drainage  district  to  be  called  'Sacramento  Drainage 
District;'  to  promote  drainage  therein;  to  provide  for  the  election  and 
appointment  of  officers  of  said  drainage  district;  denning  the  powers, 
duties  and  compensations  of  such  officers  and  providing  for  the  creation, 
division  and  management  of  reclamation,  swamp  land,  levee,  drainage  and 
protection  districts  within  said  Sacramento  Drainage  District,  and  pro- 
viding for  levying  and  collecting  assessments  upon  the  lands  within  said 


accurately  corporations  at  all,  but  are  so 
classed  because  many  of  the  presumptions 
and  rules  which  apply  to  corporations 
have  been  made  applicable  to  them. 
They  are  public  agencies  which  will 
cease  to  exist  when  the  policy  of  the 
state  has  changed  so  that  they  are  no 
longer  required  or  when  there  is  no 
further  function  for  them  to  perform, 
and  there  is  nothing  in  the  Constitution 
relating  to  municipal  corporations  which 
would  prevent  the  state  from  so  chang- 
ing its  policy  as  to  put  them  out  of 
existence.  People  ex  rel.  Van  Loben  Sels 
v.  Keclamation  District  No.  551,  117  Cal. 
114,  48  Pac.  1016    (1897). 

A  reclamation  district  formed  under 
the  act  creating  a  state  board  for  recla- 
mation of  swamp  and  overflowed  lands, 
which  was  required  upon  petition  of 
owners  of  one-third  in  acreage  of  any 
swamp  and  overflowed  land  susceptible 
of  one  mode  of  reclamation,  to  cause 
surveys  to  be   made  and   a  plan  of  the 


proposed  work  made,  and  upon  their 
approval  the  work  to  be  done  by  contract 
and  paid  for  out  of  the  state  swamp 
land  fund,  did  not  create  a  public  cor- 
poration. These  districts  were  merely 
tracts  of  land  susceptible  of  one  mode  of 
reclamation  for  which  reason,  and  be- 
cause of  which  fact,  specific  work  was 
to  be  done  by  the  state  board,  which 
was,  under  certain  contingencies,  to 
assess  the  cost  upon  the  lands  of  the 
district.  They  had  no  more  resemblance 
to  public  corporations  than  benefited  dis- 
tricts which  are  assessed  for  local 
improvements,  such  as  opening  and  grad- 
ing streets.  No  powers  whatever  were 
conferred  upon  the  district  or  upon  any 
officers  thereof,  nor  were  any  duties 
imposed  upon  any  one,  which  implied 
that  a  corporation  had  been  created. 
The  district  was  not  organized,  as  a 
corporation,  there  was  nothing  to  which 
corporate  powers  could  be  attributed. 
People  ex  rel.  Van  Loben  Sels  v.  Recla- 


1909] 


People  ex  eel.  v.  Dkainage  District. 


Ill 


drainage  district."  The  provisions  of  this  act,  so  far  as  material  to  the 
present  consideration  are  as  follows :  The  legislature  created  a  drain- 
age district,  defining  the  boundaries  thereof  and  the  lands  embraced 
therein.  These  lands  are  situated  in  the  counties  of  Sacramento,  San 
Joaquin,  Solano,  Yola,  Colusa,  Sutter,  Yuba,  Placer,  Glenn,  and  Butte, 
and  this  territory  embraces  in  part  lands  already  organized  into  reclama- 
tion, drainage,  swamp  land,  or  levee  districts.  The  act  provides  for  the 
selection  of  drainage  commissioners,  nine  in  number,  apportioned  among 
the  above-named  counties.  These  commissioners  are  to  be  elected  by  the 
owners  of  real  property  within  the  district ;  each  owner  being  entitled  to 
cast  one  vote  for  each  dollar's  worth  of  property.  Provisions  are  made 
for  the  conduct  of  these  elections  and  the  filling  of  vacancies  which  may 
arise  in  the  board.  With  other  powers,  the  board  of  drainage  commis- 
sioners is  given  supervisory  control  over  the  proposed  work  of  reclama- 
tion districts  within  the  limits  of  the  drainage  district,  is  empowered  "to 
approve  or  disapprove  any  plan  of  reclamation  in  any  reclamation  dis- 
trict, to  compel  the  construction  and  maintenance  of  necessary  reclama- 
tion works  in  reclamation  districts,  to  appoint  trustees  of  reclamation 
districts  in  case  of  vacancies,  and  in  general,  to  do  all  other  acts  and 
things  necessary  or  requisite  for  the  full  exercise  of  their  powers,  or 
necessary  for  the  promotion  of  the  reclamation  of  lands  within  the 
drainage  district."  In  this  connection  power  is  expressly  conferred  "to 
supervise  and  control  the  formation,  consolidation  or  division  of  reclama- 
tion districts  within  said  drainage  district."    When  necessary,  the  board 

power  of  eminent  domain,  and  other 
functions  of  local  government.  People 
ex  rel.  Wetz  v.  Hepler,  240  111.  196,  88 
N.  E.  491    (1909). 

It  is  competent  for  the  state  to  raise 
up  governmental  agencies  for  enforce- 
ment of  police  power  and  for  the  pur- 
pose of  enhancing  revenues  and  carrying 
revenue  laws  into  effect.  The  agency 
thus  created  is  an  arm  of  the  state  and 
a  political  subdivision  of  the  state,  and 
exercises  prescribed  functions  of  govern- 
ment and  is  not  a  private  corporation 
in  any  sense.  Mound  City  Land  &  Stock 
Co.  v.  Miller,  170  Mo.  240,  60  L.  R.  A. 
190,  94  Am.  St.  Rep.  727,  70  S.  W.  721 
(1902). 

A  levee  district  is  not  a  private  cor- 
poration, but  a  political  subdivision  of 
the  state  which  the  state  has  the  power 
to  create  under  the  police  powers,   and 


mation  District  No.  551,  117  Cal.  114, 
48  Pac.  1016   (1897). 

A  reclamation  district  is  a  public 
agency  created  in  furtherance  of  the 
public  policy  of  the  state,  a  public 
organization  formed  to  perform  certain 
work  which  the  policy  of  the  state 
requires  or  permits  to  be  done,  and  is  not 
either  a  public  or  private  corporation. 
Reclamation  Dist.  No.  551  v.  County  of 
Sacramento,  134  Cal.  477,  66  Pac.  668 
(1901);  People  ex  rel.  Chapman  v. 
Sacramento  Drainage  District,  155  Cal. 
373,   103  Pac.  307,  principal   case. 

Drainage  districts  are  local  subdivis- 
ions of  a  state,  created  by  law  for  the 
purpose  of  administering  therein  certain 
functions  of  local  government,  and  the 
commissioners  exercise  a  portion  of  the 
sovereign  power  of  the  state,  being  in- 
vested with  the  power   of  taxation,   the 


112 


Water  and  Mineral  Cases. 


[California 


may  levy  an  assessment  upon  the  lands  within  the  district,  and  in  the  levy- 
ing of  such  assessment  the  board  is  required  to  make  an  estimate  of  the 
sum  necessary.  It  is  then  to  appoint  three  disinterested  persons  as  assess- 
ors. These  assessors  are  to  assess  upon  the  land  within  the  drainage  dis- 
trict the  sum  so  estimated  by  the  board  of  drainage  commissioners,  and 
shall  "apportion  the  same  according  to  the  benefits  that  will  accrue  to  each 
tract  of  land  in  said  district  respectively  by  reason  of  the  expenditure 
of  said  sums  of  money."  The  assessors  are  required  to  make  their  lists, 
describing  the  tracts  of  land  assessed,  with  the  names  of  the  owners, 
if  known,  and  the  amount  assessed  against  each  tract.  These  lists  are  to 
be  filed  with  the  secretary  of  the  board  of  drainage  commissioners,  who 
in  turn  shall  forward  to  the  county  treasurer  of  each  county  the  assess- 
ment list  for  such  county,  which  shall  be  open  to  inspection  by  the  pub- 
lic. Thereupon  the  board  of  drainage  commissioners  is  to  appoint  a  time 
and  place  for  each  county,  when  and  where  it  will  meet  for  the  purpose 
of  hearing  objections  to  the  assessments.  Notice  is  to  be  given  by 
publication  for  two  weeks  in  a  newspaper  in  the  county,  published  nearest 
to  the  district.  Any  person  believing  himself  to  be  injured  by  the  assess- 
ment may  present  his  grounds  of  objection  thereto,  and  at  its  meeting 
the  board  of  drainage  commissioners  shall  hear  the  evidence  offered 
touching  the  correctness  or  equity  of  such  assessment,  "and  may  modify 
or  amend  the  same,  and  the  decision  of  said  board  of  drainage  commis- 
sioners shall  be  final,  and  thereafter  said  assessment  list  shall  be  conclu- 
sive evidence  that  the  said  assessment  has  been  apportioned  according 
to  the  benefits  that  will  accrue  to  each  tract  of  land  in  said  district  and 
such  assessment  shall  constitute  a  lien  upon  the  lands  so  assessed." 
After  thus  equalizing  the  assessment,  the  moneys  called  for  thereunder 


as  such  subdivision  it  exercises  the  pre- 
scribed functions  of  government  in  the 
district.  Morrison  v.  Morey,  146  Mo. 
561,  48  S.  W.  629    (1898). 

Drainage  corporations  are  public 
governmental  agencies,  and  in  no  sense 
private  corporations.  Mound  City  Land 
&  Stock  Co.  v.  Miller,  170  Mo.  240,  253, 
258,  70  S.  W.  721,  94  Am.  St.  Rep.  727, 
60  L.  R.  A.  190  (1902);  State  ex  rel. 
Compton  v.  Chariton  Drainage  Dist.  No. 
1,   192   Mo.   517,   90   S.   W.   722    (1905). 

Under  the  authority  conferred,  the 
board  exercises  a  police  power  for  the 
promotion  of  the  public  health  and  wel- 
fare, and  is  not  clothed  with  the  cor- 
porate   powers    or    privileges    forbidden 


by  constitutional  provision  prohibiting 
formation  of  corporations  by  special 
laws,  although  the  act  is  clearly  a 
special  law.  State  ex  rel.  Baltzell  v. 
Stewart,  74  Wis.  620,  43  N.  W.  947, 
6    L.    R.    A.    394     (1889). 

Where  the  Constitution  provides  that 
the  general  assembly  may  pass  laws 
permitting  owners  of  lands  to  construct 
drains,  etc.,  across  lands  of  others  and 
provide  for  reclamation  districts,  etc., 
the  provision  is  not  self-operative  nor 
mandatory.  The  right  results  only  after 
making  compensation  in  damages,  which 
in  contemplation  of  law  includes  all  loss 
or  injury  to  the  one  whose  land  is  so 
taken.     There  are  none  of  the  elements 


1909] 


People  ex  eel.  v.  Drainage  Disteict. 


113 


are  to  be  paid  into  the  county  treasury  in  instalments  in  such  amounts 
and  at  such  times  as  the  board  shall  by  order  direct,  sixty  days  being 
allowed  for  payment  after  such  order.  The  board  of  drainage  com- 
missioners is  authorized  to  begin  suit  in  the  superior  court  of  the  county 
where  the  land  is  situated  for  the  collection  of  delinquent  and  unpaid 
assessments,  and  for  the  foreclosure  of  the  lien  upon  the  property  in 
enforcement  of  such  collection. 

A  board  known  as  the  "Board  of  River  Control"  is  also  created.  This 
board  consists  of  two  members,  appointed  by  the  governor  of  the  state, 
one  of  whom  is  to  be  the  president  of  the  board  of  drainage  commis- 
sioners, and  the  other  some  competent  civil  engineer.  The  duties  of  the 
board  of  river  control  are,  for  the  most  part,  advisory.  This  board  has 
supervision  of  all  levees  and  canals  intended  to  do  duty  in  disposing  of 
flood  waters.  It  is  empowered  to  acquire  from  private  owners  or  from 
reclamation,  swamp  land,  or  other  districts,  such  rights  of  way,  ease- 
ments, and  property  as  may  be  necessary  for  its  purposes.  It  is  the 
duty  of  the  board  to  advise  and  consult  with  such  board  or  officers  as 
may  be  appointed  by  the  government  of  the  United  States,  to  advise  and 
construct  works  for  the  improvement  and  rectification  of  the  channels  of 
the  Sacramento  and  San  Joaquin  Rivers  and  their  tributaries.  It  is  its 
duty  also  to  examine  all  plans  and  specifications  which  may  be  prepared 
or  adopted  for  the  construction  of  the  works  for  the  controlling  of  flood 
waters  or  improvement  of  the  channels  of  the  rivers  and  their  tributa- 
ries, and  to  submit  a  copy  of  all  such  plans  arid  specifications  to  the  state 
board  of  examiners  for  the  latter's  investigation  and  consideration. 
When. called  upon,  the  board  is  to  confer  and  advise  with  the  state  board 
of  examiners  upon  the  matter  of  these  plans. 


of  a  contract.  These  corporations  are 
not  of  a  private  character,  but  created  by 
public  act  for  public  purposes,  and 
clothed  with  power  of  a  high  order,  and 
the  law  providing  for  their  organization 
is  subject  to  be  changed,  modified  or 
repealed.  Smith  v.  People,  140  111.  355, 
29  N.  E.  676  (1892)  ;  Hollenbeck  v.  Det- 
rick,  162  111.  388,  44  N.  E.  732    (1896). 

II.  Not  Corporations. 
Reclamation  districts  are  not  corpora- 
tions in  the  ordinary  sense  of  the  term. 
If  termed  corporations  at  all,  they  have 
only  such  powers  and  such  liabilities  as 
are  prescribed  by  the  law  which  creates 
them.  Hensley  v.  Reclamation  Dist. 
No.  556,  121  Cal.  96,  53  Pac.  401  (1898). 
W.  &  M— 8 


The  likeness  of  these  state  agencies  to 
corporations  is  superficial,  and  the 
similitude,  for  it  is  no  more  than  this, 
ceases  if  consideration  be  given  to  the 
fact  that  the  state  could  accomplish 
this  very  work  without  organizing  a 
district  as  such  at  all,  and  without 
giving  the  landowners  within  the  dis- 
trict any  voice  in  the  selection  of  the 
managers  or  trustees.  Thus  it  would 
be  perfectly  legal  and  competent  for  the 
legislature  delimiting  a  tract  of  land, 
to  appoint  a  commissioner  or  commission- 
ers to  perform  all  of  the  functions  which, 
under  existing  schemes,  are  performed 
by  the  trustees  and  assessors.  Reclama- 
tion Dist.  No.  70  v.  Sherman,  11  Cal. 
App.  399,  105  Pac.  277    (1909). 


114 


Water  and  Mineral  Cases. 


[California 


Within  six  months  after  the  organization  of  the  board  of  drainage 
commissioners,  this  board  is  to  appoint  a  committee  of  three  persons  to 
act  in  conjunction  with  a  similar  committee  appointed  by  the  Governor  of 
the  State  of  California  to  determine  the  proportion  to  be  borne  by  said 
district  and  state,  respectively,  of  the  cost  of  constructing  and  com- 
pleting either  the  work  recommended  in  the  report  of  certain  named 
engineers,  or  the  work  called  for  by  such  other  plan  as  shall  be  ap- 
proved by  the  state  board  of  examiners.  When  this  cost  has  been  ap- 
portioned, and  the  apportionment  approved  by  the  board  of  drainage 
commissioners,  the  latter  shall  appoint  three  assessors — disinterested  per- 
sons— who,  in  the  manner  above  outlined,  shall  proceed  to  assess  upon 
the  lands  within  the  drainage  district  the  sum  apportioned  against  said 
district  as  its  proportion  of  the  cost  of  the  work.  All  the  proceedings 
for  the  levying,  equalizing,  and  collecting  of  such  assessment  are  pre- 
scribed as  above  set  forth.  It  is  provided,  however,  that  no  part  of  this 
assessment  shall  be  called  in  or  collected  "until  the  State  of  California 
and  the  Government  of  the  United  States,  or  one  of  them,  shall  have 
made  an  appropriation,  or  other  legal  provision,  for  the  payment  of  the 
balance  of  the  sum  to  be  expended  jointly  with  said  district  in  performing 
the  work  according  to  the  plans  adopted,  and  in  case  payment  of  said 
sum  by  the  state  or  by  the  United  States  shall  not  be  provided  for  within 
five  years  from  the  time  said  assessment  shall  have  been  levied,  said 
assessments  shall  become  void,  and  the  lien  thereof  upon  the  lands  shall 
expire.".  Provisions  then  follow  for  the  formation  of  new  reclamation 
districts  within  the  area  of  the  drainage  district,  under  the  supervision 
and  control  of  the  drainage  commissioners,  and  for  the  consolidation  of 
existing  districts,  under  like  supervision  and  control.  And  finally,  it  is 
provided  that  until  legal  provision  has  been  made  by  the  State  of  Cali- 


Swamp  land  districts  marked  out 
under  the  Act  of  1861  were  not  public 
corporations;  they  were  merely  tracts 
of  land  susceptible  of  one  mode  of  re- 
clamation, for  which  cause  specific  work 
was  to  be  done  by  the  state  board,  who 
were  under  certain  contingencies  to  as- 
sess the  cost  on  the  lands  of  the  district. 
They  had  no  more  resemblance  to  public 
corporations  than  benefited  districts 
which  are  assessed  for  local  improve- 
ments such  as  opening,  widening,  and 
grading  streets.  People  ex  rel.  Van 
Loben  Sels  v.  Reclamation  Dist.  No.  551, 
117  Cal.  114,  48  Pac.  1016   (1897). 


A  reclamation  district  is  not  a  pri- 
vate corporation,  nor  does  the  law 
authorizing  it  in  any  way  constitute  a 
private  grant,  and  it  may  be  altered, 
modified  or  repealed  as  the  wisdom  of 
the  legislature  may  dictate.  Smith  v. 
People  ex  rel.  Detrick,  140  111.  355,  29 
N.   E.   676    (1892). 

Commissioners  of  levee  districts  are 
public,  not  corporate  officers,  and  en- 
dowed with  a  corporate  being  only  for 
the  convenience  of  administering  a  public 
trust  confided  to  them.  The  state  has 
defined  this  trust  and  its  attendant  du- 
ties. Nugent  v.  Board  of  Mississippi 
Levee   Comm'rs,  58  Miss.   197    (1880). 


1909] 


People  ex  eel.  v.  Drainage  District. 


115 


fornia  or  the  Government  of  the  United  States  for  the  payment  of  such 
proportion  of  the  cost  of  the  work  as  may  be  charged  to  them,  or  either 
of  them,  under  the  adopted  plan,  the  powers  of  the  board  of  drainage 
commissioners  conferred  by  the  act  are  suspended,  excepting  that  the 
board  may  cause  to  be  levied  and  collected  an  assessment,  not  exceeding 
the  sum  of  $50,000,  to  be  used  in  the  furtherance  of  the  general  plan; 
and  the  powers  of  all  boards  of  supervisors,  trustees  of  reclamation  and 
other  districts  are  continued  in  force  until  the  general  powers  of  the 
drainage  commissioners  shall  have  become  fully  effective. 

The  purpose  and  scope  of  the  act  are  clearly  discernible  from  a  read- 
ing of  it.  The  causes  which  led  to  its  enactment  form  a  part  of  the 
history  of  the  state.  Riparian,  or  in  proximity,  to  the  great  San  Joaquin 
and  Sacramento  Rivers,  are  vast  tracts  of  low-lying  lands,  some  strictly 
swamp  lands,  others  subject  to  overflow  at  the  usual  stages  of  high  water, 
others  liable  to  inundation  in  times  of  extraordinary  freshet,  but  all 
requiring  the  expenditure  of  money  in  the  construction  of  levees,  drain- 
age ditches,  and  pumping  plants  for  their  reclamation  and  subjection  to 
economic  use.  Some  of  these  lands,  and  indeed  some  embraced  within 
the  drainage  district  thus  created,  were  acquired  by  the  State  of  Cali- 
fornia from  the  United  States  under  the  Arkansas  Act,  and  in  turn 
were  sold  into  private  ownership  by  the  state.  Others  came  into  the 
hands  of  private  owners  by  mesne  conveyances;  the  original  source  of 
such  titles  being  the  government  of  Spain  or  Mexico,  whose  grants 
were  confirmed  by  the  United  States.  Aside  from  any  duty  which  it 
may  be  conceived  that  the  State  of  California  owed  to  the  United  States 
because  of  the  trust  upon  which  it  took  the  lands  under  the  Arkansas 
Act,  it  was  clearly  desirable  and  beneficial  to  the  state  that  all  of  these 


III.     Creation    by    Special    Laws. 

An  act  forming  a  body  corporate,  with 
powers  to  build  and  maintain  a  levee, 
is  not  in  contravention  of  the  constitu- 
tional provision  that  legislature  shall 
enact  no  special  law  where  a  general 
law  can  be  made  applicable,  or  that  the 
legislature  shall  not  by  special  act  con- 
fer corporate  powers.  Keel  v.  Board  of 
Directors  of  St.  Francis  Levee  Dist.,  59 
Ark.    513,   27    S.   W.    590    (1894). 

If  reclamation  districts  can  be  said 
to  be  corporations  at  all,  they  are  public 
corporations  for  municipal  purposes,  and 
this  means  no  more  than  they  are  state 
organizations  for  state  purposes,  and  not 
municipal  corporations  in  the  strict  sense 


of  the  word,  or  as  that  term  is  used 
in  the  Constitution.  People  ex  rel.  Van 
Loben  Sels  v.  Reclamation  District  No. 
551,   117  Cal.  114,  48  Pac.   1016    (1897). 

A  reclamation  district  is  not  a  muni- 
cipal corporation  or  a  corporation  for 
municipal  purposes  within  the  prohibi- 
tion of  article  1,  section  11,  nor  article 
II,  section  6  of  the  Constitution  of  Cali- 
fornia, but  is  a  governmental  agency  to 
carry  out  a  specific  purpose.  People  ex 
rel.  Chapman  v.  Sacramento  Drainage 
District,    principal    case. 

Reclamation  districts  are  not  muni- 
cipal corporations  within  purview  of  the 
constitutional  prohibition  against  creat- 
ing   municipal    corporations    by    special 


116 


Water  and  Mineral  Cases. 


[California 


lands  should  be  reclaimed  for  purposes  of  husbandry.  This  improve- 
ment would  add  great  wealth  to  the  state,  and  this  improvement  there- 
fore would  result  in  a  public  benefit.  Upon  the  other  hand,  the  specific 
lands  thus  reclaimed  would  be  especially  benefited  by  their  enhanced 
and  assured  productiveness,  and  it  was  proper  that  such  lands  should 
bear  the  cost  of  the  work  of  reclamation  proportioned  to  the  benefits 
which  they  would  thus  receive.  Such  being  the  condition,  levee  dis- 
tricts, drainage  districts,  and  reclamation  districts  came  into  existence, 
some  by  special  legislative  enactment,  others  under  general  and  permissive 
laws.  One  and  all  these  laws  had  in  view  the  same  end,  the  reclamation 
of  the  lands  from  the  excess  of  waters  which  poured  upon  them,  and  the 
opening  of  them  to  uses  otherwise  impossible,  with  the  increase  in  set- 
tlement, population,  and  general  prosperity  which  inevitably  would  follow. 
In  time  two  impeding  difficulties  came  to  be  perceived:  (i)  That, 
because  of  the  great  number  of  such  small  districts,  each  operated  inde- 
pendently and  under  no  general  plan  for  the  good  of  all,  much  money 
and  labor  were  wasted.  Since  there  was  no  common  and  harmonious 
plan  of  reclamation,  one  district  frequently  worked  in  antagonism  to 
another.  The  operations  or  the  neglect  of  one  district  might  tend  to  im- 
peril the  existence  of  another;  while  the  extravagant  use  of  money  made 
necessary  because  of  the  lack  of  concerted  action  and  because  each  dis- 
trict was  obliged  to  fight  not  alone  the  common  enemy,  the  water,  but 
perhaps  equally  an  adjoining  district,  put  burdens  upon  many  of  the  dis- 
tricts which  soon  became  intolerable,  with  the  result  that  the  districts 
themselves  were  sometimes  abandoned,  and  their  works  fell  into  disre- 
pair and  disuse.  (2)  Owing  to  the  sediment  and  debris  settling  upon 
the  bottoms  of  these  rivers,  the  plane  of  their  water  levels  was  heightened, 


laws.  People  ex  rel.  Chapman  v.  Sacra- 
mento Drainage  District,  principal  case; 
Reclamation  Dist.  No.  70  v.  Sherman, 
11  Cal.  App.  399,  105  Pac.  277    (1909). 

Laws  providing  for  the  formation  of 
drainage  districts,  authorizing  them  to 
manage  the  affairs  of  the  district,  etc., 
is  not  unconstitutional  as  authorizing  by 
special  act  the  formation  of  a  private 
corporation  to  improve  private  property. 
Mound  City  L.  &  S.  Co.  v.  Miller,  170 
Mo.  240,  70  S.  W.  721,  94  Am.  St.  Rep. 
727,  60  L.  R,  A.   190    (1902). 

Acts  of  legislature  conferring  corpor- 
ate powers  upon  mere  state  agencies, 
bodies  of  citizens  who  have  no  personal 
or  private  interest  to  be  subserved,  but 


are  simply  required  by  the  state  to  do 
some  public  work,  are  not  acts  conferring 
corporate  powers  such  as  are  referred 
to  in  the  constitutional  provisions  pro- 
hibiting the  conferring  of  corporate 
powers  by  special  laws.  State  ex  rel. 
Baltzell  v.  Stewart,  74  Wis.  620,  43  tf. 
W.    947    (1889). 

And  see  note  I,  C,  to  Chicago  B.  &  Q. 
R.  Co.  v.  Board  of  Supervisors  of  Appa- 
noose County,  post,  p.  462. 

IV.    Political    Subdivisions   of  State. 

It  is  competent  for  the  state  to  raise 
up  governmental  agencies  for  enforce- 
ment of  its  police  power.  The  agency 
thus  created  is  an  arm  and  political  sub- 


1909] 


People  ex  rel.  v.  Drainage  District. 


117 


to  the  increased  endangerment  of  the  adjacent  lands.  In  times  of 
flood  it  became  more  and  more  difficult  for  these  rivers  to  carry  and  dis- 
charge their  waters  through  the  natural  channels,  and  the  condition 
soon  became  a  matter  of  state  and  national  concern.  The  Government 
of  the  United  States  primarily,  and  of  the  state  secondarily,  having  in 
them  vested  the  exclusive  management  and  control  of  navigable  waters, 
were  confronted  with  the  corresponding  duty  of  preserving  the  two 
great  inland  water  highways  of  the  state.  The  accomplishment  of  this 
called  for  the  deepening  and  the  rectification  of  the  river  channels,  mat- 
ters exclusively  of  federal  or  state  cognizance.  In  turn,  however,  such 
deepening  and  rectification,  by  enabling  the  rivers  successfully  to  carry 
and  dispose  of  their  flood  waters,  would  greatly  facilitate  the  labor  of 
reclamation  imposed  upon  the  owners  of  the  adjacent  lands.  Thus,  in 
outline,  is  presented  the  situation  with  which  the  state  was  confronted. 
Itself,  or  the  federal  government,  or  both,  would  take  charge  of  the  work 
of  widening,  deepening,  and  straightening  the  river  channels.  Itself, 
or  the  federal  government,  or  both,  would  provide  funds  for  the  pay- 
ment of  this  work.  Upon  the  other  hand,  the  lands  adjacent  to  the 
rivers  would  be  greatly  and  directly  benefited  by  this  work,  and  should 
be  subject  to  special  assessment  to  pay  for  the  special  benefit  thus  received. 
Such  being  the  situation,  it  was  deemed  expedient  by  the  state  to  form 
one  large  district,  to  the  end  that  the  commissioners  of  such  district 
might  by  exercising  supervisoral  control  over  the  smaller  districts,  and 
by  adopting  one  general  plan  of  reclamation,  economize  in  expenditures, 
save  the  extravagant  waste  of  moneys  which  had  been  a  part  of  their 
past  history,  and  by  a  general  assessment  over  a  large  area  materially 
lessen,  perhaps,  the  burden  which  the  landowners  might  otherwise  be 
called  upon  to  bear.  These  were  the  obvious  reasons  actuating  the 
legislature  in  formulating  the  scheme  in  the  act  under  consideration.  It 
is  to  be  considered  whether  the  expression  which  they  gave  to  their  plan 
does  violence  to  the  Constitution. 


division  of  the  state,  and  exercises  pre- 
scribed functions  of  government.  Cribbs 
v.  Benedict,  64  Ark.  555,  44  S.  W.  707 
( 1897 )  ;  Badgar  v.  Inlet  Drainage  Dist., 
141  111.  540,  31  N.  E.  170  (1892)  ;  Zigler 
v.  Mengea,  121  Ind.  99,  22  N.  E.  782, 
16  Am.  St.  Rep.  357  (1889);  Mound 
City  Land  &  Stock  Co.  v.  Miller,  170 
•Mo.  240,  70  S.  W.  721,  60  L.  R.  A.  190, 
94  Am.  St.  Rep.  727  (1902);  Taylor  v. 
Crawford,  72  Ohio  St.  560,  74  N.  E. 
1065,  69  L.  R.  A.  805  (1905)  ;  Donnelly 
v.  Decker,  58  Wis.  461,  17  N.  W.  389,  46 


Am.  St.  Rep.  657  (1883);  Roby  v. 
Shunganunga  Drainage  Dist.,  77  Kan. 
754,  95  Pac.  399  (1908)  ;  Wurts  v.  Hoag- 
land,  114  U.  S.  606,  5  Sup.  Ct.  Rep.  1086, 
29  L.  Ed.  229  (1884);  Fallbrook  Irr. 
Dist.  v.  Bradley,  164  U.  S.  112,  17  Sup. 
Ct.   Rep.   56,   41   L.   Ed.   369    (1896). 

V.     Public    Corporations. 

A  levee  district  formed  by  special  act 
of  the  legislature,  with  power  to  make 
contracts,  incur  debts,  employ  servants 
and  agents,  and  perform  many  other  acts 


118 


Water  and  Mineral  Cases. 


[California 


i.  The  question  of  the  power  of  the  legislature,  in  a  proper  case,  to 
impose  a  burden  in  the  nature  of  a  tax  upon  specific  lands,  in  proportion 
to  the  estimated  special  benefits  which  those  lands  will  receive  from  the 
work  done,  may  not  be  doubted.  The  limitation  upon  its  power,  it  is 
well  settled,  is  this:  That  to  sustain  such  a  law  it  must  appear  that  the 
character  of  the  work  is  such  that  its  performance  confers  some  gen- 
eral benefit  on  the  public  as  well  as  a  private  benefit  on  the  landowner; 
and  that  the  improvements  here  contemplated  are  of  such  character 
has  long  been  definitely  settled.  So  complete  is  the  power  of  the  state 
over  swamp  and  overflowed  lands  that  its  power  to  provide  for  reclama- 
tion of  them  is  not  limited  to  those  lands  the  title  to  which  was  acquired 
under  the  Arkansas  Act;  but  it  exists  as  to  all  swamp  and  overflowed 
lands  in  the  state,  even  if  the  title  was  derived  from  a  Spanish  or  Mexican 
grant.  Hagar  v.  Yolo  Co.,  47  Cal.  222;  Hagar  v.  Rec.  Dist,  in  U.  S. 
701,  4  Sup.  Ct.  663,  28  L.  Ed.  569;  Fallbrook  Irr.  Dist.  v.  Bradley,  164 
U.  S.  112,  163,  17  Sup.  Ct.  56,  41  L.  Ed.  369. 

2.  The  act  does  no  violence  to  article  1,  section  11,  nor  to  article  4, 
section  25,  nor  to  article  11,  section  6,  of  the  Constitution  of  the  state. 
That  the  district  here  organized,  if  it  be  considered  a  corporation  at  all,  is 
not  a  corporation  organized  for  municipal  purposes  within  the  con- 
templation of  article  11,  section  6,  of  the  Constitution,  must  be 
taken  as  well  settled.  People  v.  Reclamation  District  551,  117  Cal. 
114,  48  Pac.  1016;  People  v.  Levee  District  No.  6,  131  Cal.  30, 
63  Pac.  676;  Reclamation  District  v.  County  of  Sacramento,  134 
Cal.  477,  66  Pac.  668.  It  is  unnecessary  to  repeat  the  reasons  set 
forth  in  the  decisions  in  those  cases  by  which  the  conclusion  there 
reached  was  expressed,  to  the  effect  that  such  districts  are,  in  strictness, 


which  pertain  to  natural  persons,  is  a 
public  corporation,  although  not  formed 
or  organized  for  the  government  of  a 
portion  of  the  state  in  the  broader  sense 
of  that  term;  but  it  exercises  certain 
governmental  functions  within  the  dis- 
trict. Dean  v.  Davis,  51  Cal.  406  (1876). 
Corporations  formed  for  drainage  pur- 
poses are  public  corporations.  The  ob- 
jects contemplated  by  them  are  to  be 
accomplished  with  funds  raised  by  special 
assessment  upon  property  benefited  there- 
by. The  power  to  make  special  assess- 
ments is  referable  to  and  included  with- 
in the  taxing  power,  and  one  of  the 
requisites  of  lawful  taxation  is  that  the 
purposes   for     which      contributions   are 


demanded  shall  be  public  in  their  nature, 
although  the  formation  of  the  district 
be  by  the  voluntary  affirmative  act  of 
the  landowners  and  its  organization  for 
their  benefit.  It  is  not  in  its  character 
and  aims  essentially  a  private  corpora- 
tion, and  is  in  no  sense  a  corporation 
in  invitum.  As  a  matter  of  course  the 
organization  is  in  part  for  the  benefit 
of  the  landowners  of  the  district,  for  the 
special  assessments  which  may  be  made 
are  limited  to  the  property  actually 
benefited  and  further  limited  to  the 
extent  of  such  benefits,  but  there  is  al- 
so a  public  benefit,  and  it  is  only  by 
virtue  of  drainage  being  a  matter  of 
public   importance   that   the   involuntary 


1909] 


People  ex  eel.  v.  Drainage  Distkict. 


119 


not  corporations  at  all,  but  rather  governmental  agencies  to  carry  out 
a  specific  purpose;  the  agency  ceasing  with  the  accomplishment  of  the 
purpose.  But,  additionally,  it  may  be  said  that  the  likeness  of  these 
agencies  to  corporations  is  superficial,  and  that  the  similitude — for  it 
is  no  more  than  this — ceases  if  consideration  be  paid  to  the  fact  that 
the  state  could  accomplish  this  very  work  without  organizing  a  district 
as  such  at  all,  and  without  giving  the  landowners  within  the  district 
any  voice  in  the  selection  of  the  managers  or  trustees.  Thus  it  would 
be  perfectly  legal  and  competent  for  the  legislature,  delimiting  a  tract 
of  land,  itself  to  appoint  a  commissioner  or  commissioners  to  perform 
all  of  the  functions  which,  under  the  existing  schemes,  are  performed 
by  the  trustees  and  the  assessors.  In  fact,  historically,  such  was  the 
original  method  adopted  when,  in  the  reign  of  Henry  VIII.,  the  first 
statute  was  passed  providing  for  the  construction  of  sewers,  drains, 
and  other  improvements  designed  to  reclaim  swamp  lands  (St.  23  Hen. 
VIII.,  c.  5,  par.  1  [1531]),  and  such  is  the  method  still  adopted  in  many 
of  the  states  of  this  nation.  It  is  in  accord  with  the  progressive  spirit 
of  our  government  to  give  to  the  people,  or  some  part  of  them,  the 
largest  possible  control  in  matters  peculiarly  affecting  them  and  their 
interests.  It  is  a  concession  to  this  spirit,  and  not  the  compulsion  of  the 
law,  which  prompts  the  legislature  to  give  the  landowners  so  large  a 
voice  in  the  control  of  such  affairs. 

Nor,  while  a  special  act,  is  the  law  obnoxious  to  the  other  sections  of 
the  Constitution  above  cited.  The  considerations  dictating  the  neces- 
sities of  a  special  law  are  plain  as  above  set  forth.  It  would  require  a 
clear  showing  upon  the  face  of  the  law  itself  that  a  special  act  was  not 
required,  before  a  court  would  interfere  with  the  determination  of  a  co- 
ordinate branch  of  the  government  upon  this  subject,  and,  generally,  as 
is  said  in  People  v.  McFadden,  81  Cal.  489,  22  Pac.  851,  15  Am.  St.  Rep. 
66,  the  determination  of  such  a  matter  "depends  upon  questions  of  fact 
which  this  court  has  no  means  of  investigating,  and  upon  the  solution  of 
which  it  would  not  attempt  to  substitute  its  judgment  in  place  of  that  of 
the  legislature." 


landowners  can  be  taxed  for  the  improve- 
ment. Elmore  v.  Commissioners,  135  111. 
269,  25  N.  E.  1010,  25  Am.  St.  Rep.  363 
(1890)  ;  Heffner  v.  Cass  &  Morgan  Coun- 
ties, 193  111.  439,  62  N.  E.  201,  58  L. 
R.   A.   353    (1901). 

A  reclamation  district  is  a  public  cor- 
poration. People  v.  Reclamation  Dist. 
No.  108,  53  Cal.  346  (1879);  People  V. 
Williams,  56  Cal.  647    (1880);   Hoke  v. 


Perdue,  62  Cal.  545  (1881);  People  v. 
Larue,  67  Cal.  526,  8  Pac.  84  (1885); 
Reclamation  District  No.  124  v.  Gray, 
95  Cal.  601,  30  Pac.  779  (1892)  ;  Swamp 
Land  District  No.  124  v.  Silva,  98  Cal. 
51,  32  Pac.  866  (1893)  j  Angus  v.  Brown- 
ing, 130  Cal.  503,  62  Pac.  827  (1900); 
McGillis  v.  Willis,  39  111.  App.  311 
(1S91). 


120 


Water  and  Mineral  Cases. 


[California 


3.  It  is  argued  with  much  earnestness  that  no  such  law  as  this  has 
heretofore  ever  been  found  upon  the  statute  books,  and  that  it  should  be 
condemned  as  unconstitutional,  as  being  a  covert  attempt  upon  the  part 
of  the  state,  under  the  guise  of  assessment  for  special  benefit,  to  force 
upon  the  unfortunate  landowners  the  cost  of  the  work  for  which  alone 
the  sovereign  state  should  pay,  the  work  of  the  improving  of  the  channels 
of  its  navigable  rivers.  The  fact  that  legislation  is  novel  demands  of  a 
court  that  it  be  scrutinized  with  exceptional  care ;  but  it  does  not  dictate 
its  condemnation.  It  is  true  that  the  protection  and  development  of  its 
harbors  and  waterways  (subject  always  to  the  paramount  right  of  the 
United  States)  are  matters  of  state  consideration  and  control.  It  is 
true  also  that  usually,  since  the  work  is  for  the  general  benefit  of  all  of 
the  people,  the  expense  is  met  by  the  state  itself;  but  it  does  not  here- 
from follow  that  in  every  case  it  is  the  legal  duty  of  the  state  so  to  bear 
the  burden.  Whenever  the  legislature  has  spoken,  the  question  before 
the  court  is  not  the  propriety  of  its  legislation,  but  its  power  to  legislate. 
The  harbor  of  San  Francisco  is  benefited  for  purposes  of  navigation 
and  commerce  by  a  sea  wall  along  the  water  front.  At  the  same  time  it 
will  not  be  questioned  that  the  lands  held  in  private  ownership  in 
close  proximity  to  such  sea  wall,  and  which  without  such  sea  wall 
would  be  inundated  "water  lots,"  are  especially  benefited  by  this  harbor 
work.  The  state,  if  it  elects,  may  pay  all  the  cost ;  but  it  will  not  be  de- 
nied that  the  state  has  the  power  to  impose  upon  the  adjacent  lands 
specially  benefited  by  the  work  an  assessment  in  proportion  to  such 
benefits,  to  defray  a  part  of  the  cost.  Or,  again,  in  the  matter  of  govern- 
mental power  and  control,  the  water  highways  of  the  state  do  not  differ 
from  the  land  highways.  The  power  of  the  state  to  exact  payment  for 
the  improvement  of  its  streets  from  the  owners  of  land  adjacent  thereto, 
in  proportion  to  the  benefits  which  their  lands  receive,  is  unquestionable 
and  unquestioned.     Legislation  which  in  like  manner  exacts  similar  con- 


VI.     Municipal    Corporations. 

Drainage  districts  should  be  classed 
as  municipal  corporations.  Commission- 
ers of  Drainage  Dist.  v.  Kelsey,  120  111. 
482,  11  N.  E.  256  (1887);  Elmore  v. 
Drainage  Commissioners,  135  111.  269, 
25  N.  E.  1010,  25  Am.  St.  Rep.  363 
(1890)  ;  but  with  limited  powers,  Badger 
v.  Inlet  Drainage  Dist.,  141  111.  540, 
31  N.  E.  170  ( 1892)  ;  People  ex  rel.  Gauen 
v.  Niebruegge,  244  111.  82,  91  N.  E.  115 
(1910). 

VII.    Private  Corporations. 

A   law   providing  for  the  construction 


of  a  levee,  naming  five  persons  as  com- 
missioners to  construct  the  same,  author- 
izing them  to  ascertain  what  lands  with- 
in designated  district  were  liable  to 
overflow,  and  to  levy  a  tax  of  not  more 
than  one  dollar  per  acre  against  the 
owners  for  the  purposes  of  carrying  out 
the  objects  of  the  act,  and  declaring  the 
commissioners  a  body  corporate  with 
perpetual  succession  and  power  to  hold 
real  and  personal  property,  which  act 
was  never  in  any  mode  submitted  to  a 
vote  of  the  inhabitants  of  the  district 
embraced  therein,   and   under   which   the 


1909] 


People  ex  eel.  v.  Deainage  District. 


121 


tribution  from  lands  adjacent  to  the  inland  waterways  for  like  considera- 
tions, stands  upon  the  same  ground,  and  for  the  same  reason  may  not  be 
successfully  assailed.  The  two  classes  of  legislation  are  congeneric  and 
have  their  origin  and  draw  their  inspiration  from  the  same  power  and 
source,  the  governmental  power  of  the  state  to  tax,  and  to  especially 
tax  for  a  public  purpose,  where  the  work  to  be  performed  will  confer  a 
special  benefit  upon  the  property  of  the  particular  landowner,  as  dis- 
tinguished from  the  general  good  which  it  will  work  to  all. 

4.  It  is  urged  the  act  does  violence  to  article  4,  section  24  of  the  Con- 
stitution, in  embracing  more  than  one  subject-matter  and  in  not  em- 
bracing in  its  title  the  principal  subject-matter.  The  penalty  which  the 
Constitution  imposes  upon  such  legislation  is  to  make  void  the  matter 
which  is  not  expressed  in  the  title.  This  inquiry  being  in  quo  warranto, 
and  the  legitimate  subject-matter  of  investigation  being  the  usurpation  by 
defendants  into  an  office  or  franchise,  it  may  be  that  the  act  contains  pro- 
visions not  germane  to  nor  fairly  embraced  within  the  subject-matter 
of  the  title,  but  only  in  the  event  that  such  an  unexpressed  provision  or 
provisions  may  be  essential  to  the  existence  to  the  law  itself  does  it  be- 
come material  to  this  consideration.  If  not  fatal  to  the  life  of  the  act, 
such  provisions  fall,  without  destruction  of  the  act  itself,  and  their  con- 
sideration and  discussion  would  have  no  proper  place  upon  this  appeal. 
The  title  of  the  act  has  been  quoted  above.  It  is  contended  that  this  title 
masks,  conceals,  indeed,  omits  reference  to  the  principal  purpose  of  the 
act,  which  is  the  improvement  of  the  river  channels,  and  the  throwing 
of  the  burden  of  the  cost  of  such  improvement  upon  the  private  land- 
owner. It  may  be  conceded  that  the  title  of  the  act  contains  no  sugges- 
tion that  in  the  promotion  of  drainage  and  reclamation  of  the  lands 


property  owners  to  be  taxed  have  no 
voice  in  the  control  of  the  company,  the 
selection  of  its  officers,  or  the  imposition 
of  the  tax,  creates  a  private  corporation, 
although  the  object  will  be  when  ac- 
complished, a  public  benefit,  and  as  such 
is  unconstitutional  as  granting  a  right 
of  taxation  to  a  private  corporation. 
Harward  v.  St.  Claire  &  Monroe  Levee 
&  Drainage  Dist.,  51  111.  130  (1869); 
George  Hessler  v.  The  Drainage  Com- 
missioners,   53    111.    105    (1870). 

VIII.    Quasi  Corporations. 

A  drainage  district  is  a  voluntary 
quasi  corporation,  organized  for  a 
special  and  limited  purpose.     Its  powers 


are  restricted  to  such  as  the  legislature 
has  deemed  essential  for  the  accomplish- 
ment of  such  purpose,  and  it  is  only 
authorized  to  raise  funds  for  the  spe- 
cific object  for  which  it  is  formed,  and 
can  do  that  in  no  other  mode  than  by 
special  assessments  upon  the  property 
benefited,  which  can  in  no  case  exceed  the 
benefits  to  the  lands  assessed.  Elmore 
v.  Drainage  Commissioners,  135  111.  269, 
25  N.  E.  1010,  125  Am.  St.  Rep.  363 
(1S90)  ;  Barton  v.  Minnie  Creek  Drain- 
age Dist.,  112  111.  App.  640  (1903). 
Sels  v.  Greene,   81   Fed.   555    (1897). 

Drainage  districts,  organized  as  they 
are,  and  clothed  with  the  powers  they 
exercise,  created  by  general  public  laws 


122 


Water  and  Mineral  Cases. 


[California 


within  the  district  the  improvement  of  the  river  channels  is  contemplated ; 
but  the  title  is  broad  enough  in  its  language  to  disclose  that  the  general 
purpose  of  the  act  is  to  provide  a  scheme  for  the  betterment  of  the  lands 
lying  within  the  described  area.  Such  aspects  of  the  rectification  and 
improvement  of  the  river  channels  as  are  set  forth  in  the  act,  if  falling 
within  and  germane  to  the  general  purpose  announced  by  the  title,  did 
not  require  expression  in  that  title.  The  two  great  purposes  of  the  act, 
as  above  suggested,  are,  first,  to  bring  into  harmony  under  one  general 
board  of  control  the  plans  and  work  of  existing  districts  and  of  the  other 
lands  not  in  them  embraced.  All  this  is  quite  independent  of  the  matter 
of  the  improvement  of  the  river  channel.  The  second  purpose  is  contin- 
gent upon  the  action  of  the  state  or  federal  government.  It  contemplates, 
still  for  the  general  purpose  of  the  promotion  of  the  reclamation  of  the 
lands,  that  it  shall  be  determined  what  benefit  those  lands  will  receive, 
if  any,  when  the  government  shall  undertake  this  work.  It  was  not  the 
purpose  of  the  constitutional  provision  here  invoked  to  hamper  legisla- 
tion, but  to  check  and  prevent  deceptive  legislation  (Cooley,  Const.  Lim. 
[6th  Ed.]  p.  175;  Ex  parte  Liddell,  93  Cal.  638,  29  Pac.  251 ;  Law  v.  San 
Francisco,  144  Cal.  388,  yy  Pac.  1014;  Beach  v.  Von  Detten,  139  Cal. 
462,  7$  Pac.  187;  People  v.  Linda  Vista  Irr.  Dist.,  128  Cal.  477,  61  Pac. 
86),  and  we  hold  that  the  subject-matter  of  the  benefits  which  might 
accrue  to  the  land  in  the  event  of  the  rectification  and  deepening  of  the 
river  channels  was  subordinate,  germane  to,  and  within  the  general  pur- 
pose of  the  title,  and  did  not  call  for  express  mention  in  that  title. 

The  other  considerations  presented  by  appellant  as  showing  that  the 
body  of  the  act  contains  a  multiplicity  of  subjects  foreign  to  its  title  may 
be  disposed  of  collectively.  From  what  has  been  said,  it  appears  that  the 
creation  of  the  board  of  river  control  is  not  only  within  the  purpose, 
but  within  the  very  title,  of  the  act.  The  other  objections  go  to  the  pow- 
ers conferred  upon  the  officers,  and  it  may  be  seen  that  these  powers  are 
in  legitimate  aid  of  the  general  purpose  of  the  act.    If  it  should  hereafter 


for  public  purposes,  are  in  no  sense  pri- 
vate corporations,  but  on  the  other  hand 
they  are  at  least  quasi  public  corpora- 
tions, and  as  such  the  laws  providing 
for  their  organization  are  subject  to 
be  changed,  modified  or  repealed,  as  the 
wisdom  of  the  legislature  may  direct. 
Smith  v.  People  ex  rel.  Detrick,  140 
111.  355,  29  N.  E.  676    (1892). 

A  drainage  district  is  to  be  classified 
with  counties,  townships,  school  districts, 
road  districts,  and  other  quasi  involun- 


tary corporations,  as  distinguished  from 
municipal  corporations  or  private  cor- 
porations. Such  a  district  is  a  sub- 
division merely  of  the  general  powers  of 
the  state  for  the  purposes  of  civil  and 
governmental  administration.  Rood  v. 
Claypool  Drainage  and  Levee  Dist.,  120 
Fed.    207     (1903). 

An  act  of  the  legislature  creating  a 
drainage  district,  with  commissioners 
who  are  to  take  oath,  give  bonds  for  the 
faithful    performance    of    their    duties, 


1909] 


People  ex  rel.  v.  Drainage  District. 


123 


be  found  that  as  to  some  specific  matter  excessive  power  had  been  con- 
ferred, it  would  be  so  decreed ;  but  the  decision  would  not  tend  to  destroy 
the  law  as  a  whole.  Upon  the  general  subject-matter  of  the  management 
and  control  over  the  existing  districts,  vested  in  the  board  of  commis- 
sioners of  the  district  here  created,  it  may  be  suggested  that  it  was  within 
the  unquestioned  power  of  the  legislature,  with  due  regard  to  vested 
rights,  to  have  put  out  of  existence  all  of  these  districts,  and,  having 
done  so,  to  have  created  a  board  of  commissioners  to  manage  future 
works  of  reclamation.  That  it  has  done  less  than  this,  by  conferring 
upon  such  a  board  supervisoral  control  of  these  districts,  while  continu- 
ing their  existence,  is  but  an  exercise  by  the  legislature  of  less  than  its 
plenary  power. 

5.  It  is  argued  that  the  act  in  question  works  a  taking  of  the  land- 
owner's property  without  due  process  of  law.  Herein  it  is  insisted:  (a) 
That  the  landowner  was  denied  a  hearing  to  which  he  was  entitled^  upon 
the  question  of  the  inclusion  or  exclusion  of  his  land;  (b)  that  an  illegal 
and  unconstitutional  tribunal  was  created  to  pass  upon  and  determine  the 
question  of  the  benefits  which  his  land,  so  improperly  included,  may  re- 
ceive, in  violation  of  article  6,  sections  1  and  5,  of  the  Constitution. 

(a)    Where  the  legislature  has  itself  spoken  in  the  creation  of  a  district 
such  as  this,  and  where  the  legislative  determination  may  be  deemed 
to  depend  upon  a  question  of  fact,  it  is  conclusively  presumed  that  the 
legislature  took  evidence  in  its  determination,  and  the  decision  which  it 
has  reached  will  not  be  subject  to  review  by  the  courts.    The  latter  will 
'  confine  themselves  exclusively  to  questions  appearing  upon  the  face  of 
the  statute  itself.    Stevenson  v.  Colgan,  91  Cal.  649,  27  Pac.  1089,  14  L. 
R  A.  459,  25  Am.  St.  Rep.  230;  Lewis  v.  Colgan,  115  Cal.  529,  47  Pac. 
357;    Smith   v.    Mathews    (Cal.).      Says    Judge    Cooley    (Const.    Lim. 
[6th  Ed.]  p.  220) :    "If  evidence  was  required,  it  must  be  supposed  that 
it  was  before  the  legislature  when  the  act  was  passed,  and  if  any  special 
finding  was  required  to  warrant  the  passage  of  the  particular  act,  it 
would  seem  that  the  passage  of  the  act  itself  might  be  held  equivalent  to 
such  finding."     This  court  has  said,  commenting  upon  this  language: 
"This  view  seems  to  be  sustained  by  the  decisions  of  the  highest  courts 
of  other  states  and  is  in  harmony  with  the  central  idea  of  the  Constitu- 
tion  in  prescribing  the   independence   and   equality   of   the   three   great 


cause  accurate  surveys  to  be  made  of 
the  route  of  the  proposed  system  of 
drainage,  and  after  hearing  parties  in- 
terested, to  decide  whether  in  their 
opinion  the  public  health  or  welfare 
would  be  promoted  by  the  intended  work, 


and  if  so,  to  classify  the  lands  for  as- 
sessment of  benefits  and  taxes,  to 
collect  the  same,  to  make  contracts,  in- 
cur obligations,  sue  for  and  enforce  the 
collection  of  delinquent  assessments  and 
exercise   other   corporate  powers,   is   one 


124 


"Water  and  Mineral  Cases. 


[California 


departments  of  the  state."  Stevenson  v.  Colgan,  supra.  Speaking  directly 
upon  this  subject-matter,  the  Supreme  Court  of  the  United  States  has 
said  (Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  174,  17  Sup.  Ct.  56, 
69,  41  L.  Ed.  369)  :  "It  has  been  held  in  this  court  that  the  legislature 
has  power  to  fix  such  a  district  for  itself  without  any  hearing  as  to  bene- 
fits, for  the  purpose  of  assessing  upon  the  lands  within  the  district  the 
cost  of  a  local  public  improvement.  The  legislature,  when  it  fixes  the 
district  itself,  is  supposed  to  have  made  proper  inquiry,  and  to  have 
finally  and  conclusively  determined  the  fact  of  the  benefits  to  the  land 
included  in  the  district,  and  the  citizen  has  no  constitutional  right  to  any 
other  or  further  hearing  upon  that  question.  The  right  which  he  there- 
after has  is  to  a  hearing  upon  the  question  of  what  is  termed  the  appor- 
tionment of  the  tax,  i.  e.,  the  amount  of  the  tax  which  he  is  to  pay." 

(b)  Upon  the  amount  of  the  tax  which  the  landowner  is  to  pay,  the 
scheme  by  which  that  amount  is  to  be  apportioned  and  assessed  has  been 
outlined  above.  It  will  be  remembered  that,  after  disinterested  persons 
have  made  their  assessment,  a  notice  of  the  time  and  place  of  the  sitting  of 
the  board  of  drainage  commissioners  for  the  purpose  of  equalizing  the 
assessment  is  to  be  given,  the  board  is  to  hear  complaints  and  correct 
errors,  and  its  determination  is  declared  to  be  final.  It  is  insisted  that  this 
either  creates  a  court  or  confers  judicial  powers  upon  executive  and 
administrative  officers,  in  violation  of  the  constitutional  provision  of 
article  6,  sections  1  and  5,  of  the  Constitution.  That  the  board  sitting 
to  equalize  the  assessments  acts  judicially  must  be  conceded.  The  very 
purpose  for  which  it  sits  is  to  act  judicially  for  the  correction  of  errors 
and  abuses  in  the  original  assessment ;  but  to  say  that  for  this  reason 
the  legislature  has  attempted  to  create  a  court  in  violation  of  the  Con- 
stitution is  a  proposition  to  which  assent  must  be  denied.  Many  acts, 
judicial  in  their  nature,  must  of  necessity  be  performed  by  the  executive 
and  administrative  officers  of  the  government.  The  decisions  of  such  offi- 
cers upon  any  controverted  question,  upon  any  question  even  in  which 
there  is  play  for  discretion,  are  in  their  nature  judicial;  but  because  this 
is  so,  and  necessarily  so,  it  does  not  follow  that  they  are  usurping  the  ex- 
clusive functions  of  the  courts  of  the  land,  and,  if  they  are  not  doing 
so,  the  power  which  they  exercise  may  not  thus  be  questioned.  City 
councils  and  boards  of  supervisors  annually  fix  the  rates  which  water 


clearly  granting  certain  corporate  powers 
and  privileges.  The  act  seems  to  consti- 
tute the  drainage  commissioners,  a  cor- 
poration to  accomplish  and  carry  out 
the  work  of  the  proposed  system  of  drain- 
age,   but    they    are    organized    as    quasi 


corporations  for  governmental  purposes, 
in  order  to  execute  the  police  power  of 
the  state  over  a  particular  district  for 
the  promotion  of  the  public  health  and 
welfare,  and  the  act  is  not  obnoxious  to 
a  provision  of  the  Constitution  prohibit- 


1909] 


People  ex  eel.  v.  Drainage  District. 


125 


consumers  within  their  territories  shall  pay  to  the  quasi-public  corpora- 
tions furnishing  such  water.  Here  these  boards  are  called  upon  to  con- 
sider and  decide  controverted  questions  of  fact  of  great  moment  and  of 
much  nicety.  Their  decrees  fixing  rates  contain  many  of  the  elements 
of  a  judgment.  They  are  binding  determinations  upon  the  water  com- 
pany upon  the  one  hand  and  upon  the  consumer  upon  the  other.  Yet,  the 
power  of  these  boards  to  exercise  such  quasi  judicial  functions  has  been 
upheld.  Upon  this  very  subject  the  Supreme  Court  of  the  United  States, 
speaking  through  Chief  Justice  Waite,  has  said :  "Like  every  other  tri- 
bunal established  by  the  legislature  for  such  a  purpose,  their  duties  are 
judicial  in  their  nature,  and  they  are  bound  in  morals  and  in  law  to 
exercise  an  honest  judgment  as  to  all  matters  submitted  for  their  official 
determination.  It  is  not  to  be  presumed  that  they  will  act  otherwise 
than  according  to  this  rule."  Spring  Valley  Waterworks  Co.  v.  Schot- 
tler,  no  U.  S.  347,  4  Sup.  Ct.  48,  28  L.  Ed.  173.  And,  after  quoting 
this  language,  that  same  court,  speaking  of  the  power  of  the  board  of 
supervisors  under  the  irrigation  district  laws  to  pass  upon  the  question 
of  benefits,  says :  "In  that  case  the  board  was  to  fix  the  price  of  water, 
while  in  this  it  is  to  determine  the  fact  of  benefits  to  lands.  The  principle 
is  the  same  in  each  case."  And,  in  this  connection,  it  is  declared  that 
such  a  board,  having  the  power  to  hear  and  determine  the  question  of 
benefits,  is  a  proper  and  sufficient  tribunal  to  satisfy  the  constitutional  re- 
quirements of  due  process  of  law.  Fallbrook  Irr.  Dist.  v.  Bradley,  164 
U.  S.  169,  17  Sup.  Ct.  67,  41  L.  Ed.  369.  And  so  in  Hagar  v.  Rec.  Dist., 
in  U.  S.  701,  4  Sup.  Ct.  663,  28  L.  Ed.  569,  where  the  same  subject  is 
under  discussion,  it  is  said:  "But  where  a  tax  is  levied  on  property  not 
specifically  but  according  to  its  value,  to  be  ascertained  by  assessors  ap- 
pointed for  that  purpose  upon  such  evidence  as  they  may  obtain,  a  differ- 
ent principle  comes  in.  The  officers  in  estimating  the  value  act  judicially, 
and  in  most  of  the  states  provision  is  made  for  the  correction  of  errors 
committed  by  them,  through  boards  of  revision  and  equalization,  sitting 
at  designated  periods  provided  by  law  to  hear  complaints  respecting  the 
justice  of  the  assessments.  The  law,  in  prescribing  the  time  when  such 
complaints  will  be  heard,  gives  all  the  notice  required,  and  the  proceeding 
by  which  the  valuation  is  determined,  though  it  may  be  followed,  if  the 
tax  be  not  paid,  by  a  sale  of  the  delinquent's  property,  is  due  process 


ing  the  legislature  from  enacting  any 
special  or  private  law  granting  corporate 
powers  or  privileges,  except  to  cities. 
State  ex  rel.  Baltzell  v.  Stewart,  74 
Wis.  620,  43  N.  W.  947    (1889). 

As  to  power  of  legislature  to  dissolve 


district,  see  note  IV  to  Chicago  B.  & 
Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  post,  p.  478. 

Legislature  may  delegate  power  to 
districts,  see  note  III,  B,  4,  to  Chicago 
B.  &  Q.  R.  Co.  v.  Board  of  Supervisors  of 


126 


Water  and  Mineral  Cases. 


[California 


of  law."  Against  a  fraudulent  exercise  of  this  power,  recourse  may,  of 
course,  be  had  to  the  courts.  Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac. 
237.  But,  otherwise,  the  requirement  of  due  process  of  law  is  satisfied 
in  the  creation  of  this  tribunal,  with  the  powers  conferred  upon  it  to 
hear  and  correct  errors  and  abuses,  upon  reasonable  notice  to  the  prop- 
erty owner. 

6.  The  members  of  the  board  of  drainage  commissioners,  as  the  board 
is  constituted,  are  not  disqualified  by  interest  to  act  as  a  tribunal  to  hear 
objections  to  the  assessment  by  reason  of  the  fact  that  they  are  land- 
owners within  the  district.  Members  of  the  boards  of  supervisors  and  of 
city  councils,  in  adjusting  water  rates,  are  themselves  consumers,  and  to 
that  extent  have  an  interest  in  the  subject-matter  of  their  decision;  but 
they  are  not  therefore  disqualified.  The  principle  is  the  same  in  this  case. 
Hamilton,  Special  Assessments,  138;  Hibben  v.  Smith,  191  U.  S.  310,  24 
Sup.  Ct.  88,  48  L.  Ed.  195. 

7.  Nor  is  there  a  double  tax  upon  the  land.  The  special  assessment 
for  benefits  is  upon  the  theory  that,  to  the  amount  of  such  assessment,  the 
land  is  directly  benefited.  Such  general  tax  as  the  land  may  pay  to  the 
state  stands  upon  an  entirely  different  foundation.  The  owner  of  land 
fronting  upon  a  street,  who  is  assessed  for  special  benefits  for  the  street 
work,  does  not  suffer  double  taxation  when  that  land  is  assessed,  and  is 
again  subject  to  general  tax  by  the  city  or  state,  even  though  a  portion 
of  the  money  so  derived  should  go  to  the  maintenance  of  the  highway 
in  front  of  his  property. 

8.  The  act  in  terms  does  not  attempt  to  impair  the  obligation  of  exist- 
ing contracts.  The  state  has  the  undoubted  right  to  vary  its  plans  for  the 
reclamation  of  these  lands,  and  in  so  doing  to  create  new  or  different 
agents  and  mandatories.  If  in  the  operation  of  its  new  laws  an  attempt 
should  be  made  to  impair  vested  rights,  the  attempt,  upon  proper  showing 
before  a  court,  would  unquestionably  be  held  nugatory. 

9.  No  violence  is  done  by  the  act  to  the  constitutional  inhibition 
against  requiring  a  property  qualification  for  a  voter.  Const,  art.  1,  sec- 
tion 24.  This  objection  is  completely  disposed  of  by  People  v.  Rec.  Dist. 
551,  117  Cal.  114,  48  Pac.  1016.  The  assessments  are  for  local  improve- 
ments, not  for  general  purposes  of  taxation,  and  the  legislature  permits 
the  landowners  to  appoint  their  own  agents.  The  method  which  it  im- 
poses upon  the  landowners  in  making  the  selection  is  wholly  within  its 


Appanoose  County,  post,  p.   475. 

As  to  power  to  establish  drain  being 
statutory,  see  note  VII  to  Seibert  v. 
Lovell,  post,  p.   264. 


As  to  what  are  swamps  and  overflowed 
lands  see  note  I,  to  Hull  v.  Sangamon 
River  Drainage  District,  post,  p.  594. 


1909]  People  ex  kel.  v.  Drainage  District.  127 

control ;  for,  as  has  been  said,  it  is  not  compelled  to  give  the  landowners 
any  voice  in  that  selection. 

We  have  thus  discussed  all  the  points  advanced  upon  appeal  and  perti- 
nent to  this  consideration  under  quo  warranto.  The  questions  presented 
arise  upon  the  rulings  of  the  court  in  striking  out  portions  of  the  petition 
and  in  sustaining  a  general  demurrer  thereto. 

For  the  reasons  above  given,  the  rulings  complained  of  were  correct, 
and  the  judgment  appealed  from  is  affirmed. 

We  concur :  MELVIN,  J. ;  SHAW,  J. ;  ANGELLOTTI,  J. ;  SLOSS, 
J. ;  LORIGAN,  J. 

The  CHIEF  JUSTICE,  being  a  partner  interested  as  a  landowner 
within  the  boundaries  of  the  Sacramento  Drainage  District,  did  not  par- 
ticipate in  the  foregoing. 


128  Water  and  Mineral  Cases.  [California 

DUCKWORTH  et  al.  v.  WATSONVILLE  WATER  &  LIGHT  CO.  et  al 

[Supreme  Court  of  California,  August  25,  1910;  rehearing  denied,  September  24, 1910.] 

158  Cal.  206,   110  Pac.  927. 

1.  Pleading — Amendment — Error   in  Allowing   Harmless. 

The  allowance  of  an  amendment  of  an  answer  to  a  cross-complaint,  denying 
specifically  certain  allegations,  is,  if  erroneous,  harmless  where  the  original 
answer  admitted  the  cross-complaint  only  so  far  as  it  was  not  inconsistent  with 
the   affirmative   allegations   of   the   answer. 

2.  Waters  and  Water  Rights — Evidence — Expert  Testimony  as  to   Existence 

of  Lake. 

Opinion  evidence  as  to  whether  a  certain  body  of  water  was  or  was  not  a  lake 
is  inadmissible,  the  question  being  one  which  could  be  answered  by  any  one 
properly  informed  regarding  the  definition  of  a  lake  and  the  facts  and  conditions 
surrounding  the  water,  and  therefore  not  a  subject  for   expert  testimony. 

3.  Same — Actual    Appropriation    Confers    Right    without    Compliance    with 

Code. 

The  actual  appropriation  of  water  without  compliance  with  the  code  provisions 
is  enough  to  give  the  appropriator  a  right  as  against  any  one  who  did  not  have, 
at  the  time  of  his  diversion,   a  superior  right. 

4.  Same — Cannot  Devest  Prior  Rights. 

Actual  appropriation  without  compliance  with  the  code  provisions  cannot 
devest  prior  rights,  but  will  be  good  as  against  a  subsequent  appropriator. 

5.  Same — Compliance  with  Code — Rights  Relate  Back  to  Notice. 
Compliance  with   the  sections    of    the    code    relative    to   appropriation    are    im- 
portant only   in   so   far   as   the   claimant   seeks   to  have   his   rights   relate   back   to 
the    date    of   posting. 

G.   Same — Cuts  Off  Intervening  Rights. 

Compliance  with  code  provisions  will  cut  off  rights  accruing  between  the  date 
of  posting  and  the  actual  diversion  for  beneficial  purposes. 

7.  Same — Actual  Appropriation — Compliance  with  Code  Not  Necessary  where 

no  Intervening  Rights. 
Where   no   rights   have   intervened,   actual    appropriation   may   be   made   without 
following  the  provisions  of  the  code. 

8.  Same — Failure  to   Follow  Code   Immaterial. 

Where  no  claim  of  any  right  accruing  between  posting  of  notice  and  actual 
diversion  and  use  of  water  is  made,  failure  to  follow  the  code  provisions  i3 
immaterial. 

9.  Pleading  and   Practice — Findings  upon   All    Issues. 

Where  it  is  alleged  that  certain  water  and  riparian  rights  were  conveyed  to 
a  certain  party,  and  by  that  party  to  defendants,  defendants  are  entitled  to  a  finding 
upon  such  issues  so  as  to  have  the  right  vested  under  such  conveyance  protected 
by   the  decree. 

10.  Waters  and  Water  Rights — Effect  of  Conveyance  of. 

Effect  of  conveyance  by  landowner  of  all  riparian  and  water  rights  and 
privileges  except  for  domestic  uses  and  irrigation,  and  for  stock,  is  to  convey 
all  water  and  water  rights  and  privileges  of  every  kind,  character,  and  descrip- 
tion  which   apply   or   in   any   manner   pertain   to   the   land,   except   those   reserved. 


1910]     Duckworth  et  al.  v.  Water  &  Light  Co.  et  al. 


129 


11.  Same — Grantee  of  Vendor  Estopped. 

The  grantee  of  one  who  has  conveyed  all  his  riparian  and  water  rights  to  a 
third  party  is  bound  by  such  conveyance,  and  is  estopped  from  asserting  any 
rights  in  conflict  with  the  rights  so  conveyed. 

12.  Same — Appropriation   First  in  Time  Is  First  in  Right. 

The  law  is  thoroughly  settled  that  as  between  two  appropriators,  the  one 
first    in    time   is    first    in    right    (per    Shaw,    J.,    concurring    opinion). 

13.  Waters  and    Water   Rights — Cannot    Be   Severed   from    Riparian    Lands. 
Riparian    rights   exist   solely   because    land   abuts    on   water,    and    extend   to    all 

water  which  may  be  reached  from  the  land,  and  not  to  any  specific,  particular 
or  definite  quantity  or  area  of  it.  Water  cannot  be  severed  from  riparian 
land  and  transferred  to  a  third  person  so  as  to  give  title  and  the  right  to  remove 
it  as  against  other   riparian   owners    (per   Shaw,  J.,   concurring   opinion). 

14.  Same — Conveyance  of  Water  Rights — Estoppel  of  Vendor. 

By  conveyance  of  all  his  water  rights,  riparian  owner  is  absolutely  estopped 
to  use  any  part  of  water  on  land  except  as  reserved  in  the  conveyance. 

Action  involving  the  rights  of  the  parties  to  the  waters  of  a  certain 
lake.    Decree  confirming  certain  rights  to  each  of  the  parties.    Reversed 

For  appellants— Chas.  Shurtleff  and  H.  C.  Wyckoff. 

For  respondents — Netherton  &  Torchiana. 

SLOSS,  J.  The  first  trial  of  this  action,  which  involves  the 
rights  of  the  parties  to  the  waters  of  Pinto  Lake,  in  Santa  Cruz  County, 
resulted  in  a  judgment  declaring  that  the  plaintiffs  had  a  prior  right  to 
take  as  much  water  as  they  could  beneficially  use  upon  their  land,  not 
exceeding  a  continuous  flow  of  250  miners'  inches.  Upon  an  appeal 
to  this  court,  the  judgment  was  reversed,  for  reasons  stated  in  an  opinion 
reported  in  150  Cal.  520,  89  Pac.  338.  The  facts  giving  rise  to  the  con- 
troversy and  the  relative  situations  of  the  parties  and  their  property 
are  set  forth  in  that  opinion,  and  need  not  be  restated  here.  Upon  a 
second  trial,  the  superior  court  gave  judgment  declaring  that  the  Watson- 


CASE   NOTE. 

Rights  of  Appropriator  of  Water  Not 
Complying  with  the  Statute  as 
against  One  Subsequently  Comply- 
ing Therewith. 

The  object  of  statutes  requiring  the 
giving  of  notice  by  posting,  recording, 
etc.,  of  intention  to  appropriate  waters, 
is  to  give  information  of  such  inten- 
tion to  persons  subsequently  intending 
to  appropriate  the  same  waters,  and  to 
fix  a  time  at  which  the  rights  of  the 
appropriator  giving  such  notice  shall 
W.  &  M.— 9 


commence,  provided  he  diligently  pros- 
ecutes the  work  of  diversion  and  within 
a  reasonable  time  puts  the  water  di- 
verted to  a  reasonable  use.  When  this  is 
done,  the  rights  relate  back  to  the  time 
of  the  giving  of  notice.  The  giving  of 
such  notice,  however,  is  not  essential  to 
an  appropriation  of  waters;  by  an 
actual  appropriation  and  diversion  the 
same  object  is  even  better  accomplished 
and  the  giving  of  notice  and  taking  of 
the  other  steps  provided  by  the  statute 
can  have  no  effect  upon  the  rights  of  one* 
who    prior    thereto     had     made     actual 


130 


Water  and  Mineral  Cases. 


[California 


ville  Water  &  Light  Company  has  the  right,  as  riparian  owner,  to  divert 
and  apply  on  its  land  riparian  to  said  lake  ten  miners'  inches  of  water; 
that  it  has  the  right,  by  virtue  of  appropriation,  to  divert  forty  miners' 
inches  for  a  beneficial  purpose  or  use;  and  that,  subject  to  these  rights 
of  the  said  water  and  light  company,  the  plaintiff  S.  J.  Duckworth  has 
the  right  to  divert  142  miners'  inches  of  water  from  Pinto  Lake  for  bene- 
ficial purposes.  Each  of  the  said  parties  is  enjoined  from  interfering 
with  the  rights  of  the  other  as  above  defined.  The  defendants  now  ap- 
peal from  this  judgment  and  from  an  order  denying  their  motion  for  a 
new  trial. 

A  preliminary  question  should  be  disposed  of  before  proceeding  to  a 
consideration  of  the  merits.  In  its  cross-complaint,  the  Watsonville 
Water  &  Light  Company  alleged  that  it  was  the  owner  and  entitled  to 
the  exclusive  use  of  all  the  waters  contained  and  flowing  in  Pinto  Lake. 
The  plaintiff  answered  this  allegation  in  a  form  that  was  declared  by 
this  court,  on  the  former  appeal,  to  be  to  a  certain  extent  evasive.  The 
appellants  now  complain  of  the  action  of  the  court  below  in  making  an 
ex  parte  order,  after  the  reversal  of  the  first  judgment  by  this  court,  per- 
mitting the  plaintiffs  to  amend  their  answer  to  the  cross-complaint  by 
denying  specifically  the  aforesaid  allegation.  It  is  unnecessary  to  con- 
sider whether  this  order  was  erroneous.  The  amendment  made  no 
material  change  in  the  issues.  Under  the  original  answer,  the  allegation 
that  the  cross-complainant  owned  all  the  water  of  the  lake  was,  as  is 
pointed  out  in  the  former  opinion,  admitted  only  in  so  far  as  such  allega- 
tion was  not  "inconsistent  with  the  affirmative  allegations  of  the  answer." 
See  150  Cal.  530,  89  Pac.  343.  One  of  these  allegations  was  that  plain- 
tiff S.  J.  Duckworth  "has  a  right  to  and  an  interest  in  said  waters 
*  *  *  as  an  appropriator."  He  claims  here  only  as  such  appropria- 
tor,  and  the  order  permitting  him  to  amend  was,  therefore,  if  error, 
harmless. 


appropriation  and  use  of  the  water,  al- 
though he  took  none  of  the  steps  pre- 
scribed by  the  statute.  Duckworth  v. 
Watsonville  Water  &  Light  Co.,  princi- 
pal case;  De  Necochea  v.  Curtis,  80  Cal. 
397,  20  Pac.  563,  22  Pac.  198  (1889); 
Burrows  v.  Burrows,  82  Cal.  564,  23 
Pac.  146  (1890);  Alta  L.  &  W.  Co.  v. 
Hancock,  85  Cal.  219,  24  Pac.  645,  20 
Am.  St.  Rep.  217  (1890)  ;  Wells  v.  Man- 
tes,   99    Cal.   583,    34    Pac.    324    (1893); 

Watterson    v.     Saldunbehere,    101    Cal. 

107,  35  Pac.  432  (1894);  Senior  v. 
Anderson,    115    Cal.    496,    47    Pac.    454 


(1896);  Duckworth  v.  Watsonville 
Water  &  Light  Co.,  150  Cal.  520,  89 
Pac.  338  (1907);  Murray  v.  Tingley, 
20  Mont.  260,  50  Pac.  723    (1897). 

The  actual  diversion  and  use  of  water 
without  a  compliance  with  the  statute 
gives  a  right  to  the  continued  use 
thereof  as  against  one  whose  right  of 
purchase  of  the  land  vests  after  di- 
version is  fully  completed.  De  Necochea 
v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22 
Pac.  198   (1889). 

One  who  diverts  water  upon  public 
unoccupied   lands   of   the   United   States 


1910]      Duckworth  et  al.  v.  Water  &  Light  Co.  et  al.  131 


The  appellants  attack  the  sufficiency  of  the  evidence  to  sustain  a  find- 
ing "that  Pinto  Lake,  its  tributaries  and  outlet,  is  part  of  a  running 
stream."  This  finding  followed  the  verdict  of  an  advisory  jury  to 
which  certain  special  issues  had  been  submitted.  A  similar  finding 
had  been  made  at  the  first  trial.  Upon  the  former  appeal  we  said,  in 
answer  to  an  objection  like  the  one  now  made,  that  we  could  not  "agree 
with  the  appellant  in  his  contention  that  the  finding  that  the  lake,  or  its 
tributaries,  constituted  a  running  stream,  is  not  sustained  by  the  evi- 
dence." The  showing  in  support  of  the  finding  contained  in  the  present 
record  is  quite  as  strong  as  that  before  this  court  on  the  earlier  appeal. 
Without  giving  to  the  view  heretofore  expressed  by  us  binding  force  as 
the  "law  of  the  case"  (see  Allen  v.  Bryant,  155  Cal.  256,  100  Pac.  704, 
and  cases  cited),  we  are,  after  reconsideration,  satisfied  with  that  view, 
and  shall  apply  it  to  the  present  appeal. 

In  disposing  of  this  point,  it  may  be  well  to  advert  to  the  alleged  error 
of  the  trial  court  in  declining  to  permit  appellants'  witnesses  to  state 
whether,  in  their  opinions,  "Pinto  Lake  is  a  lake."  We  think  that  the 
objection  that  the  question  called  for  expert  testimony  on  a  matter  not 
properly  the  subject  of  expert  testimony  was  well  taken.  The  facts  and 
conditions  observed  by  the  witnesses  had  been  fully  described.  Whether 
the  subject  of  their  observation  and  testimony  constituted  a  water  course 
or  a  body  of  standing  water  was  a  question  which  could  be  answered 
by  any  one  who  was  properly  informed  regarding  the  definitions  of  the 
respective  terms.  The  distinction  between  a  stream  and  a  lake  was,  pre- 
sumably, correctly  declared  to  the  jury  as  matter  of  law.  The  ultimate 
question  whether  or  not  there  was  a  running  stream  was  to  be  answered 
"by  the  jury,  acting  under  proper  instructions  or  by  the  court  itself. 

The  court  found  that  the  Watsonville  Water  &  Light  Company  is 
the  riparian  owner  of  a  strip  of  land  bordering  the  lake;  that  five  and 


from  its  natural  course,  and  conveys 
it  through  ditches  and  flumes  to  a  dis- 
tant point  and  uses  it  for  irrigation, 
mining  or  manufacturing  purposes,  has 
a  perfect  right  to  the  water  actually 
appropriated  as  against  all  the  world 
except  the  owner  of  the  soil  and  those 
claiming  adversely  who  have  complied 
with  the  law,  and  this  whether  the 
diversion  was  made  before  or  after 
the  taking  effect  of  the  code  provis- 
ions regarding  notice,  etc.  De  Necochea 
v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22 
Pac.  198   (1889). 


The  actual  diversion  and  use  of  water 
without  the  giving  of  notice  confers  a 
right  thereto  as  against  pre-emptioner 
of  public  lands.  De  Necochea  v.  Curtis, 
80  Cal.  397,  20  Pac.  563,  22  Pac.  198 
(18S9);  Burrows  v.  Burrows,  82  Cal. 
564,  23  Pac.  46  (1890).  A  statutory 
appropriation  is  not  necessary  to  acquire- 
ment of  the  right.  Alta  L.  &  W.  Co.  v. 
Hancock,  85  Cal.  219,  25  Pac.  645,  20 
Am.  St.  Rep.  217    (1890). 

The  posting  of  notice  and  proceed- 
ings thereunder,  as  (required  by  the 
statute,   will   give  no  right  to  the   use 


132 


Water  and  Mineral  Cases. 


[California 


one-half  acres  of  said  land  is  capable  of  cultivation ;  and  that  not  more 
than  ten  inches  of  water  could  be  used  for  the  irrigation  of  this  land. 
It  found,  further,  that  since  1901  the  said  company  has  diverted  forty 
inches  of  water  from  Pinto  Lake,  and  that  this  water  has  been  sold 
by  the  company  and  applied  to  lands  nonriparian  to  Pinto  Lake.  The 
plaintiff  S.  J.  Duckworth  has  succeeded  to  the  interest  of  his  wife,  Flora 
McKinley  Duckworth,  who  was  originally  joined  with  him  as  plaintiff. 
It  is  found  that  prior  to  the  commencement  of  the  action,  said  S.  J.  Duck- 
worth posted  on  the  bank  of  the  lake  a  notice  of  appropriation,  giving 
notice  that  he  proposed  to  appropriate  250  inches  of  water  from  said 
lake.  The  recording  of  the  notice  and  the  commencement  and  prosecu- 
tion of  the  necessary  work  are  found.  There  is  a  rinding  that  plaintiff 
has  actually  appropriated  and  diverted  from  the  lake  142  inches  of  water, 
and  applied  it  to  the  beneficial  purpose  of  irrigating  a  portion  of  his 
land,  and  that  this  diversion  has  not  materially  increased  the  cost  to  the 
water  and  light  company  of  taking  water  from  the  lake. 

If  these  findings  stood  alone,  and  if  all  of  them  were  sustained  by 
the  evidence,  the  judgment  establishing  the  rights  of  the  parties  as  here- 
inabove stated  would  appear  to  be  free  from  objection.  The  appellants 
question  the  sufficiency  of  the  evidence  to  support  some  of  these  findings. 
It  is  claimed,  in  the  first  place,  that  there  is  no  evidence  that  the  plain- 
tiff's notice  of  appropriation  was  ever  recorded.  This  claim  appears 
to  be  well  founded.  An  examination  of  the  bill  of  exceptions  fails  to 
disclose  any  showing  on  this  point.  A  further  attack  on  the  sufficiency 
of  plaintiff's  appropriation  is  that  the  notice  designated  a  six-inch  pipe 
as  the  means  of  diversion,  whereas  the  diversion  was  in  fact  made 
through  a  twelve-inch  pipe.  On  the  former  appeal  the  question  whether 
the  use  of  a  larger  conduit  than  the  one  specified  would  vitiate  a  notice 


of  water  as  against  one  who  has  there- 
tofore actually  diverted  and  appro- 
priated it  to  a  beneficial  use.  Wells  v. 
Mantes,  99  Cal.  583,  34  Pac.  324 
(1893). 

The  law  is  now  settled  that  where 
there  has  been  an  actual  appropriation 
of  water,  a  right  to  it  is  acquired  with- 
out following  the  course  laid  down  in 
the  code.  Watterson  v.  Saldunbehere, 
101  Cal.   109,  35  Pac.  432    (1894). 

Giving  of  notice  is  not  essential  to  a 
valid  appropriation  of  water,  which  may 
be  by  actual  diversion  for  some  bene- 
ficial use.  Senior  v.  Anderson,  115  Cal. 
496,  47  Pac.  454   (1896). 


Where  one  has  completed  the  diver- 
sion of  water  before  any  rights  in  the 
land  are  acquired  by  another,  the  ap- 
propriation will  hold  good  as  against 
the  latter.  Taylor  v.  Abbott,  103  Cal. 
421,  423,  37  Pac.  408   (1894). 

The  appropriation  of  water  under 
the  California  Civil  Code  has  only  the 
effect  of  giving  the  appropriator  a 
right  superior  to  that  of  any  subse- 
quent appropriator  on  the  same  stream, 
and  he  acquires  thereby  no  rights  what- 
ever as  against  rights  existing  in  the 
water  at  the  time  his  appropriation 
was   be^un.      Duckworth   v.    Watsonville 


1910]      Duckworth  et  al.  v.  Water  &  Light  Co.  et  al. 


133 


of  appropriation  was  expressly  left  open  for  the  reason  that  it  was  not 
presented  by  the  record.  We  do  not  think  a  decision  of  this  question 
is  required  by  the  state  of  the  case  as  it  now  appears.  Let  us  assume 
that  no  rights  can  be  founded  on  the  notice,  whether  for  want  of  re- 
cording or  for  failure  to  state  correctly  the  size  of  the  pipe  through 
which  water  was  to  be  diverted.  Civ.  Code,  §  141 5.  The  plaintiff  did, 
however,  actually  divert  and  apply  to  a  beneficial  use  142  inches  of  wa- 
ter, as  is  found  by  the  court  on  sufficient  evidence.  Such  actual  appro- 
priation, without  compliance  with  the  code  provisions,  is  enough  to  give 
him  a  right  as  against  any  one  who  did  not  have,  at  the  time  of  the  diver- 
sion, a  superior  right.  It  cannot  devest  prior  rights,  but  it  will  be  good 
as  against  a  subsequent  appropriator.  Wells  v.  Mantes,  99  Cal.  583,  34 
Pac.  324;  Watterson  v.  Saldunbehere,  101  Cal.  107,  35  Pac.  432.  Com- 
pliance with  the  sections  of  the  code  relative  to  appropriation  are  im- 
portant only  in  so  far  as  the  claimant  seeks  to  have  his  right  relate  back 
to  the  date  of  posting.  Civ.  Code,  §  141 8.  Such  compliance  will  cut 
off  rights  accruing  between  the  date  of  posting  and  the  actual  diversion 
for  beneficial  purposes.  If  no  such  rights  have  intervened,  the  actual 
appropriation  may  be  made  without  following  the  provisions  of  the 
code.  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198 ;  Bur- 
rows v.  Burrows,  82  Cal.  564,  23  Pac.  146 ;  Wells  v.  Mantes,  supra.  In 
the  case  at  bar  the  prior  rights  of  the  water  company  as  riparian  owner 
and  senior  appropriator,  so  far  as  it  was  found  to  have  such  rights,  were 
fully  recognized  and  preserved  by  the  decree.  The  company  claimed  no 
right  accruing  between  the  posting  of  the  notice  and  the  actual  diversion 
and  use  by  Duckworth.  The  failure  to  follow  the  code  provisions  is 
therefore  immaterial. 

The  appellant  water  company  claims,  however,  that  under  its  prior 
appropriation  it  was  entitled  not  only  to  the  forty  inches  of  water  which 
it  had  actually  diverted  and  applied  to  beneficial  uses,  but  to  a  further 


Water  &  Light  Co.,  150  Cal.  520,  89  Pac. 
338  (1907);  Duckworth  v.  Watsonville 
Water  &  Light  Co.,   principal  case. 

Where  an  actual  appropriation  and 
diversion  of  the  water  take  place  prior 
to  the  posting  of  notice,  the  posting  of 
the  notice  and  the  other  steps  under  the 
statute  are  immaterial.  The  right  vested 
upon  the  actual  diversion  and  beneficial 
use  of  the  water.  Brown  v.  Newell,  12 
Idaho   166,  85  Pac.  385    (1906). 

A  valid  water  right  may  be  acquired 
even  where  there  has  been  no  compliance 
with  the  statutes,  where  water  has  been 


actually  diverted  from  a  stream  by 
means  of  a  ditch,  and  applied  to  a 
beneficial  use  in  the  absence  of  the 
inception  of  any  adverse  statutory  claim. 
Murray  v.  Tingley,  20  Mont.  260,  50  Pac. 
723     (1897). 

Where  an  appropriation  is  made  by 
en  actual  diversion  and  use  and  there- 
after a  statutory  notice  is  filed  but 
nothing  further  is  done  under  it,  the 
rights  of  the  appropriator  are  fixed  by 
his  actual  appropriation  and  he  gains 
no  new  rights  by  the  notice.  Smyth  v. 
Neal,  31  Or.  105,  49  Pac.  850   (1897). 


134 


Water  and  Mineral  Cases. 


[California 


quantity  as  a  reserve  or  emergency  supply  for  the  city  of  Watsonville, 
to  be  drawn  on  in  case  of  accident  to  the  pipe  line  from  which  said  city 
is  usually  supplied.  By  an  amendment  to  the  answer  the  defendants 
alleged  that  the  water  company  had  connected  the  pipe  leading  from  the 
lake  with  a  reservoir  connecting  with  its  system  of  pipes  supplying  the 
city  of  Watsonville  for  the  purpose  of  appropriating  the  waters  of  the 
lake  for  the  furnishing  a  reserve  for  such  emergency  uses.  We  do  not 
see  that  this  fact  in  and  of  itself  could  give  the  company  a  right  to  any- 
thing in  excess  of  the  forty  inches.  The  only  diversion  alleged  was  one 
of  forty  inches  through  a  fifteen-inch  pipe,  and  the  water  taken  through 
such  pipe  was  applied,  as  the  answer  states,  to  two  beneficial  purposes, 
i.  e.,  the  irrigation  of  lands  and  a  reserve  or  emergency  supply.  But 
the  total  amount  claimed  to  have  been  diverted  for  both  purposes  was 
forty  inches,  and  the  company's  prior  right  to  take  this  amount  is  recog- 
nized by  the  decree. 

The  appellant  water  company  claims  further  that  it  had,  by  virtue  of 
certain  deeds,  rights  which  were  prior  and  superior  to  any  right 
of  Duckworth  to  use  the  waters  of  Pinto  Lake  on  his  land  except  for 
domestic  purposes  and  the  watering  of  stock.  The  answer  avers 
that  in  1885,  while  Carmen  Amesti  de  McKinley  was  the  owner 
of  the  land  now  owned  by  plaintiff,  and  upon  which  he  is  apply- 
ing the  water  claimed  by  him  as  appropriator,  she  conveyed  to 
the  defendants  Smith  and  Montague,  all  and  singular  the  water 
and  riparian  rights  and  water  rights  and  privileges  of  every  kind, 
character,  and  description,  which  belong  or  in  any  manner  pertain  to 
said  land,  save  and  except  the  necessary  water  for  domestic  and  culinary 
purposes  and  the  watering  of  stock.  The  court  made  a  finding  in  support 
of  this  allegation.  There  is,  however,  no  finding  upon  the  further  aver- 
ment of  the  answer  that  in  January,  1897,  Smith  and  Montague  conveyed 
to  the  Watsonville  Water  &  Light  Company  all  the  rights  so  conveyed 
to  them  by  Mrs.  McKinley.  The  defendant  corporation  was  entitled 
to  a  finding  on  this  issue,  and  if  the  finding  was  in  its  favor,  to  have 


Assuming  that  no  rights  can  be  vested 
by  notice  of  appropriation  for  want  of 
record,  or  for  failure  to  state  correctly 
size  of  pipe  through  which  water  is  to 
be  diverted,  where  the  appropriator  does 
actually  divert  and  apply  to  a  beneficial 
use  a  certain  amount  of  water,  such 
actual  appropriation,  without  compliance 
with  the  statute,  is  enough  to  give  him  a 
right  as  against  any  one  who  did  not  have 
at  the  time  of  the  actual  diversion,  a 
superior  right.      It   cannot   devest   prior 


rights,  but  it  will  be  good  as  against 
a  subsequent  proprietor.  Duckworth  v. 
Watsonville  Water  &  Light  Co.,  princi- 
pal   case. 

Compliance  with  the  statute  relative 
to  appropriation  is  important  only  in 
so  far  as  the  claimant  seeks  to  have  his 
right  relate  back  to  the  date  of  posting. 
Such  compliance  will  cut  off  rights  ac- 
cruing between  the  date  of  posting  and 
the  actual  diversion  for  beneficial  pur- 
poses. If  any  such  rights  have  not  inter- 


1910]        DUCKWOETH  ET  AL.  V.  WaTEK  &  LlGHT  Co.  ET  AL. 


135 


the  rights  vested  in  it  under  said  deed  protected  by  the  decree.  The 
plaintiff  claims  title  as  successor  in  interest  to  Mrs.  McKinley,  and  as 
owner  of  the  land  is  bound  by  her  deed  to  the  same  extent  that  she  was. 
The  purpose  and  effect  of  the  conveyance  was  to  transfer  to  the  grantees 
whatever  right  the  grantor  had  to  apply  the  waters  of  Pinto  Lake  to 
the  land  of  the  grantor,  except  for  domestic  uses  and  irrigation 
of  stock.  The  instrument  conveys  not  only  riparian  right,  but  all 
water  and  water  rights  and  privileges  of  every  kind,  character, 
and  description  which  belong  or  in  any  manner  pertain  to  said  land.  The 
right,  or  one  of  the  rights,  now  asserted  by  Duckworth,  is  to  apply  the 
waters  of  Pinto  Lake  to  the  irrigation  of  the  same  land.  This  is  a  right 
which  has  been  transferred  by  his  predecessor  in  interest  to  the  defendant, 
and  he  is,  by  virtue  of  her  deed,  estopped  from  asserting  it  in  antagonism 
to  her  grantees.  It  is  of  no  consequence  that  he  bases  his  claim  upon 
a  so-called  "appropriation,"  made  subsequent  to  the  deed.  An  appropria- 
tion under  our  statute,  has  only  the  effect  of  giving  the  appropriator  "a 
right  superior  to  that  of  any  subsequent  appropriator  on  the  same  stream. 
But  he  acquires  thereby  no  right  whatever  as  against  rights  existing  in 
the  water  at  the  time  his  appropriation  was  begun.  An  appropriation  does 
not  of  itself  deprive  any  private  person  of  his  rights ;  it  merely  vests 
in  the  appropriator  such  rights  as  have  not  previously  become  vested 
in  private  ownership.  *  *  *"  Duckworth  v.  Watsonville  Water  & 
Light  Co.,  150  Cal.  520,  531,  89  Pac.  338,  343.  But  if  Duckworth,  in  apply- 
ing waters  for  the  benefit  of  his  lands,  were  to  be  given  priority  over  the 
use  of  the  same  waters  by  the  Watsonville  Water  &  Light  Company,  his 
appropriation  would  have  the  effect  of  taking  away  from  said  company 
a  part  of  the  very  right  which  had  been  transferred  by  plaintiff's  prede- 
cessor, so  far  as  she  was  capable  of  transferring  it.  That  grant  was,  of 
course,  not  effective  to  convey  any  right  not  owned  by  the  grantor  or 
owned  by  third  parties.  It  was  however,  effective  as  an  estoppel  on  the 
grantor  and  her  successors,  preventing  them  from  objecting  to  any  use 
by  the  water  company  of  water  which  might,  in  the  absence  of  the  deed, 


vened,  the  actual  appropriation  may  be 
made  without  following  the  provisions  of 
the  statute.  Duckworth  v.  Watsonville 
Water  &  Light  Co.,  principal  case. 

More  definite  information  for  his 
guidance  is  furnished  a  party  contem- 
plating the  appropriation  of  water  by 
an  actual  diversion  thereof  than  could 
be  obtained  from  any  notices  provided 
by  statute.  Wells  v.  Mantes,  99  Cal. 
583,    34    Pac.    324     (1893). 

Where    appropriator    claims    no    right 


accruing  between  posting  of  notice  and 
actual  diversion  and  use  of  water,  failure 
to  follow  the  statutory  provisions  as  to 
appropriation  is  immaterial.  Duckworth 
v.  Watsonville  Water  &  Light  Co.,  prin- 
cipal case. 

The  simple  act  of  appropriation  under 
the  statute  will  not  of  itself  defeat  or 
extinguish  any  prior  right.  Alta  L. 
&  W.  Co.  v.  Hancock,  85  Cal.  219,  24 
Pac.   645,  20  Am.   St.  Rep.   217    (1890). 

The   appropriation    does    not   of   itself 


136 


Water  and  Mineral  Cases. 


[California 


have  been  applied  for  the  benefit  of  the  McKinley  land.  That  it  oper- 
ated as  such  estoppel  so  far  as  plaintiff's  riparian  right  is  concerned 
was  expressly  held  on  the  former  appeal,  where  we  said  that,  because 
of  said  deeds,  "the  water  company  can  use  the  water  for  any  purpose, 
at  any  place,  and  in  any  quantity  which  leaves  plaintiffs  enough  for 
stock  and  domestic  purposes."  It  is  true  that  in  the  same  opinion  we 
said  that  "Duckworth  claims  a  right  to  a  part  of  the  water  by  appro- 
priation, and  with  respect  to  the  right  thus  claimed  he  has  a  status  which 
entitles  him  to  challenge  the  right  of  the  water  company.  His  privity 
with  the  McKinley  deed  does  not  estop  him  from  making  an  appropria- 
tion of  any  water  in  the  lake  that  may  be  subject  to  appropriation,  nor 
from  demanding  that  the  water  company  shall  not  make  a  greater  use  of 
the  water  than  it  is  authorized  to  do  by  the  rights  which  it  is  shown  to 
have,  if  such  use  interferes  with  an  appropriative  right  by  him."  But  in 
this  passage  we  were  speaking  of  the  general  right  to  appropriate  water 
for  use  upon  land  other  than  that  owned  by  the  grantor  of  the  deeds. 
It  was  intended  to  declare  merely  that  the  making  of  the  deeds  did  not 
prevent  the  maker  or  her  successors  from  appropriating  water.  Whether 
Duckworth  had  any  right  as  appropriator  was  not  decided,  nor  was  it 
decided  that  he  could,  notwitstanding  the  grant  of  all  water  and  water 
rights  belonging  or  pertaining  to  certain  land,  make  an  appropriation 
for  use  upon  that  very  land,  which  should  be  good  as  against  the  grantees 
or  their  successors.  For  the  reasons  above  stated,  we  think  it  must  be 
held  that  he  could  not  appropriate  for  that  purpose.  The  right  which 
he  claims  is  the  right  to  take  water  and  use  it  upon  his  land.  That  right 
has  been  conveyed  to  the  defendant,  and  the  plaintiff  cannot,  in  the 
face  of  his  predecessor's  deed,  be  permitted  to  revive  it,  or  retake  it  by 
the  mere  device  of  entitling  his  taking  an  "appropriation." 

If  upon  another  trial,  it  should  be  found  that  the  rights  conveyed  to 
Smith  and  Montague  are  now  vested  in  the  water  company,  the  latter 
is  entitled  to  a  decree  declaring  that  it  has  a  right  superior  to  any  claim 
of  plaintiff  to  use  water  on  the  land  mentioned  in  the  deeds  to  take 
water  from  the  lake  in  any  quantity  and  for  any  purpose,  provided 
enough  is  left  for  domestic  purposes  and  stock  on  plaintiff's  land.  This 
right  extends  not  only  to  the  water  actually  heretofore  taken  by  the 
water  company,  but  to  all  which  it  may  hereafter  divert  and  apply  to 
beneficial  use. 


deprive  any  private  person  of  his  rights. 
It  merely  vests  in  the  appropriator  such 
rights  as  have  not  previously  become 
vested  in  private  ownership.  Duckworth 
v.  Watsonville  Water  &  Light  Co.,  150 
Cal.  520,  89  Pac.  338(1907)  ;  Duckworth 


v.  Watsonville  Water  &  Light  Co.,  prin- 
cipal   case. 

Before  the  adoption  of  the  civil  code 
in  California,  all  that  was  necessary  was 
the  actual  appropriation  and  use  of 
water  for  the  intended  purpose,  and  no 


1910]      Duckworth  et  al.  v.  Water  &  Light  Co.  et  al. 


137 


As  a  new  trial  will  be  necessary,  we  express  no  opinion  upon  the 
sufficiency  of  the  evidence  to  support  the  finding  that  the  cost  to  the 
water  company  of  taking  water  has  not  materially  increased  since  the 
diversion  of  142  inches  of  water  by  plaintiff.  The  issue  will  have  to 
be  tried  again,  and  the  evidence  relating  to  it  may  differ  from  that  now 
before  us. 

It  may  perhaps  be  unnecessary  to  add  that  the  foregoing  discussion 
has  reference  simply  to  the  rights  of  the  parties  inter  se.  The  right  of 
third  parties  to  take  a  part  of  the  water  of  the  lake,  or  to  complain  of  a 
diversion  by  any  of  the  parties  to  this  action,  is  not  here  involved,  and 
cannot  be  affected  by  anything  here  decided. 

Under  the  views  herein  expressed,  the  further  points  made  by  appel- 
lants do  not,  we  think,  require  attention. 

The  judgment  and  order  denying  a  new  trial  are  reversed. 

We  concur:  ANGELLOTTI,  J.;  LORIGAN,  J. 

SHAW,  J.  I  concur.  There  appears  to  have  been  some  misappre- 
hension by  counsel  concerning  the  passage  in  the  opinion  upon  the  former 
appeal  in  this  case  relating  to  the  status  of  Duckworth  as  an  appropriator 
or  user  of  water  not  taken  under  any  claim  of  riparian  rights.  Having 
written  that  opinion,  I  take  this  occasion  to  state  more  fully  what  I  con- 
ceive to  be  the  true  doctrine  on  that  point. 

Duckworth  was  not  at  the  time  of  the  first  trial  the  owner  of  the 
McKinley  lands,  but  held  a  lease  thereon.  The  notices  of  appropriation 
posted  by  him  stated  that  he  proposed  to  use  the  water  upon  other  lands  as 
well  as  upon  that  land.  This  reference  to  other  lands  may  have  been 
insufficient,  under  the  code,  as  a  designation  of  the  place  of  intended 
use,  and  for  that  reason  his  notice  of  appropriation  may  have  been 
void  as  to  use  on  such  other  lands,  or  in  toto,  as  a  proceeding  under  the 
statute;  but  it  was  sufficient  to  show  that  he  was  claiming  a  right  to 
divert  water  for  use  on  lands  other  than  the  McKinley  lands,  which  might 
ripen  into  a  right  by  prescription,  and  as  to  these  other  lands  he  would 
not  be  estopped  by  the  McKinley  deeds  to  Smith  and  Montague.  Now 
if  Duckworth  was  at  the  time  actually  diverting  water  from  the  lake  and 
using  it  on  such  other  lands,  not  riparian,  and  the  defendant  company 
was  also  diverting  water  therefrom  for  use  on  nonriparian  land,  which, 


posting  or  record  of  notice  was  re- 
quired. De  Necochea  v.  Curtis,  80  Cal. 
397,  20  Pac.  563,  22  Pac.  198   (1889). 

As  against  one  subsequently  acquiring 
title  from  the  government,  an  actual 
diversion  and  use  of  the  water  is  limited 
to  the  extent  and  manner  of  such  actual 


and  completed  diversion.  De  Necochea 
v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22 
Pac.    198    (1889). 

As  to  appropriation  and  diversion  of 
waters  of  springs,  see  note  to  Hollett  v. 
Davis,   post,   p.   415. 


138  Water  and  Mineral  Cases.  [California 

for  the  purposes  of  the  discussion  to  which  the  passage  from  the  former 
opinion  was  devoted,  might  have  been  the  case  as  between  them,  in  such 
a  case  the  law  is  thoroughly  settled  that  the  one  first  in  time  is  first  in 
right.  With  respect  to  these  possible  antagonistic  claims,  therefore. 
Duckworth  had  the  right  to  show,  if  he  could,  that  his  diversion  and  use 
on  such  other  lands  antedated  that  of  the  defendant,  or  any  recent 
enlargement  of  its  use  by  the  defendant.  We  were  then  considering  not 
the  actual  case,  but  the  case  as  it  might  possibly  develop  under  the 
pleadings,  and  it  was  this  claim  of  right  which  was  referred  to  in  the 
former  opinion  in  the  expression  "with  respect  to  the  right  thus  claimed 
he  has  a  status  which  entitles  him  to  challenge  the  right  of  the  water  com- 
pany." We  did  not  say  that  he  was  entitled  to  prevail  over  the  water 
company,  but  that  he  was  in  a  position,  with  regard  to  or  by  virtue  of 
the  pleadings,  to  attack  or  to  challenge  the  alleged  right  of  the  defend- 
ant, a  position  which  made  their  alleged  rights  as  users  of  water  on  non- 
riparian  lands  a  material  issue  in  the  case  as  presented  in  the  pleadings. 
It  seems  from  the  record  before  the  court  on  the  present  appeal,  that 
he  does  not  now  claim  the  right  to  use  the  water  except  on  the  McKinley 
lands.  This  being  the  case,  all  that  was  said  on  this  subject  on  the 
previous  appeal  is  inapplicable  to  the  present  case. 

Perhaps  something  more  should  be  said  regarding  the  effect  of  a  con- 
veyance by  the  owner  of  riparian  land,  of  his  riparian  right  therein,  to 
another  for  nonriparian  use.  The  court  below  seems  to  have  been  of 
the  opinion  that  the  riparian  right  consisted  of  the  ownership  of  a  defi- 
nite quantity  of  the  water  of  the  lake,  a  quantity  equal  only  to  the 
amount  which  could  be  beneficially  used  on  the  riparian  land  concerned, 
and  that  the  conveyance  merely  transferred  to  the  grantees  that  quantity 
from  the  lake,  leaving  the  riparian  grantor  free  to  take  thereafter  an  equal 
or  greater  quantity  therefrom  and  use  it  on  the  identical  land,  provided 
only  that  he  must  leave  enough  to  furnish  to  the  grantees  the  definite 
quantity  which,  by  this  theory,  was  conveyed,  or  if  the  grantees  were 
using  less,  then  enough  to  provide  for  their  actual  use  from  time  to 
time.  This  was  not  the  legal  effect  of  the  conveyance.  The  riparian 
right  exists  solely  because  the  land  abuts  upon  the  water.  It  is  parcel 
of  the  land.  It  extends  to  all  the  water  which  may  be  reached  from 
the  land,  and  not  to  any  specific  particles  or  definite  quantity  or  area  of 
it.  It  is  the  right  to  make  reasonable  use  and  consumption  of  the  water 
on  the  adjoining  land  and  to  a  reasonable  use  of  the  water  in  place,  in 

As      to       transporting       appropriated  As   to   the   formation   of    and   various 

water    through    dry    ravines,    etc.,    see  matters  relating  to    irrigation  districts, 

note  to  Lower  Tulle  River  Ditch  Co.  v.  see   note   to   Pioneer   Irrigation   Dist.   v.. 

Angiola  Water  Co.,  post,  p.  280.  Oregon  Short  Line,  ante,  p.  2. 


1910]      Duckworth  et  al.  v.  Water  &  Light  Co.  et  al.  132 

connection  with  and  for  the  benefit  of  the  land.  The  water  cannot  be 
severed  from  the  land  and  transferred  to  a  third  person  so  as  to  give 
him  the  title  and  right  to  remove  it,  as  against  other  riparian  owners. 
The  grantor  alone  will  be  estopped  by  such  a  conveyance.  The  estoppel 
against  him  with  respect  to  the  use  and  consumption  of  the  water,  or 
diversion  from  its  natural  position,  must  be  as  complete  and  extensive 
as  was  the  right  he  conveyed.  The  McKinley  deeds  conveyed  the  entire 
right  to  use  this  water  for  irrigation  on  these  lands  to  the  defendant's 
predecessors,  and  it  now  belongs  to  the  defendant,  and  not  to  Duckworth. 
A  man  may  not  eat  his  cake  and  have  it.  A  man  who  sells  a  right  to  do 
a  thing  cannot  thereafter  exercise  the  right  himself,  except  by  permis- 
sion of  the  buyer,  and  it  is  immaterial  that  the  buyer  may  not  be  using 
or  exercising  it.  If  the  water  company  had  obtained  similar  deeds  from 
the  owners  of  all  the  lands  abutting  upon  the  lake  and  its  tributaries,  it 
would  have  obtained  a  complete  estoppel  against  such  landowners,  which 
would  have  prevented  them  from  interfering  with  any  use  it  saw  fit  to 
make  of  the  water,  and  such  estoppel  would  undoubtedly  extend  to  all 
the  water  of  the  lake.  If,  having  this  right  of  estoppel,  it  chose  to  use 
only  a  part  of  the  water,  or  none  of  it,  this  neglect  to  use  it  would  not 
give  any  of  the  owners  the  right  to  take  that  which  the  company  suffered 
to  remain  unused.  A  judgment  which  purported  to  give  such  owners  the 
unqualified  right  to  use  the  water  on  their  respective  tracts  as  against 
the  company,  would  operate  to  deprive  the  company  of  the  prop- 
erty which  it  had  bought  and  paid  for  and  to  return  that  prop- 
erty to  the  person  who  sold  it  and  received  payment  of  the  price. 
The  same  principle  must  apply  when  the  estoppel  has  been  ob- 
tained as  to  one  only  of  the  riparian  owners.  He  is  absolutely  estopped 
to  use  any  part  of  the  water  on  the  land,  except  as  specified  in  the  deed 
by  which  he  is  bound.  These  propositions  are  fully  established  by  the 
following  authorities :  Alhambra,  etc.,  Co.  v.  Mayberry,  88  Cal.  74,  25 
Pac.  hoi;  Gould  v.  Stafford,  91  Cal.  155,  27  Pac.  543;  Gould  v.  Eaton, 
117  Cal.  542,  49  Pac.  577,  38  L.  R.  A.  181 ;  Yocco  v.  Conroy,  104  Cal.  471, 
38  Pac.  107;  Lux  v.  Haggin,  69  Cal.  300,  310,  392,  4  Pac.  919,  10  Pac. 
674;  St.  Helena  W.  Co.  v.  Forbes,  62  Cal.  184,  45  Am.  Rep.  659;  Zimm- 
ler  v.  San  Luis  W.  Co.,  57  Cal.  222;  Farnham  on  Waters,  §§  462,  463; 
Gould  on  Waters,  §§  207,  215. 


140  Water  and  Mineral  Cases.  [California 


DUCKWORTH  et  al.  v.  WATSONVILLE  WATER  &  LIGHT  CO.  et  al. 

[Supreme  Court  of  California,  February  8,  1907;  rehearing  denied,  March  9,  1907.] 

150  Cal.  520,  89  Pac.  338, 

1.  Riparian  Owner — Right  in  Source  Lakes. 

A  lower  riparian  owner  along  an  intermittent  stream  has  no  right  in  water 
standing  in  pools  or  lakes  above  his  land;  his  right  is  limited  to  the  water 
naturally  passing  his  land  for  use  on  his  land  and  he  cannot  transfer  a  greater 
light  to  one  owning  land  on   source  lake. 

2.  Same — Extent  of  Right. 

A  riparian  owner  of  the  greater  part  of  a  lake  shore  and  bed  has  no  right 
in  the  water  by  virtue  of  such  ownership  except  for  actual  beneficial  use  on 
the  riparian  land. 

3.  Same — Purchaser  of   Right. 

One  purchasing  the  rights  of  a  riparian  owner  in  a  lake  need  not  enter  upon 
such  owner's  land  in  order  to  exercise  the  right  but  may  take  the  water  from 
any  point  in  the   lake. 

4.  Irrigation — Right  by  Prescription. 

The  adverse  user  of  water  for  the  purpose  of  watering  stock  gives  no  right 
to   use    for    irrigation   or   other    purposes. 

5.  Appropriation — Running     Stream. 

Evidence  of  the  intermittent  overflow  of  a  lake  together  with  a  slight  flow 
into  the  lake  in  dry  season  is  sufficient  to  support  a  finding  that  the  lake  with 
its   tributaries   and   outlet   constitutes  a   running  stream   subject  to   appropriation. 

6.  Same — Former    Grant — Estoppel. 

A   riparian  owner   under  a   former  holder  who  had  granted   the  riparian   rights 

to    another   is    not    estopped    from    making    an    appropriation    nor  from    enforcing 

his    rights    as    appropriator    against    the    grantee    of    the    riparian  rights,    subject 
to   the   terms   of   the   prior   grant. 

7.  Same — Prior   Rights. 

The    right    to    appropriate   water    exists    wherever    water  exists    unappropriated 

and   free   from   superior   claims,   and    an    appropriation    and  use   becomes    effective 

against  a  private  right  only  after  five  years'  adverse  user,  and  then  only  to  the 
extent   of   the   use. 

8.  Water  Rights — Pleading — Negative  Pregnant. 

An  answer  denying  that  a  water  company  is  the  owner  entitled  to  the  ex- 
clusive use  of  all  the  waters  of  a  lake  is  an  admission  that  the  water  company 
is  entitled  to  substantially  all  of  the  water. 

9.  Same — Notice. 

A  notice  of  appropriation  which  states  that  the  water  is  to  be  used  on  certain 
described  land  and  upon  other  land  not  described,  to  be  conveyed  in  "a  six-inch 
pipe  or  by  a  pipe  of  other  dimensions"  is  sufficient  to  authorize  use  on  the  land 
described   through    a   six-inch    pipe. 

10.  Acknowledgment — Certificate. 

A  certificate  of  acknowledgment  is  sufficient  which  begins  "State  of  California, 
Monterey  County — ss"  and  recites  that  "before  me,  John  Ruurds,  notary  public 
in  and  for  Monterey  County,"  etc.,  and  is  signed  by  him,  with  the  words  "notary 
public"  following. 


1907]     Duckworth  et  al.  v.  Water  &  Light  Co.  et  al.  141 

Action  to  determine  water  rights  by  S.  J.  Duckworth  and  another 
against  the  Watsonville  Water  &  Light  Company  and  others.  Judgment 
for  plaintiffs.    Defendants  appeal.    Reversed. 

For  appellants— C.  A.  Shurtliff  and  H.  C.  Wyckoff. 

For  respondents — Dickman  &  Torchiana  and  W.  P.  Netherton. 

SHAW,  J.  Plaintiffs  are  the  owners  of  320  acres  of  land  front- 
ing on  Pinto  Lake;  the  plaintiff  Flora  being  the  owner  of  the  fee,  and 
the  other  plaintiff  the  owner  of  a  leasehold  interest.  They  claim  rights 
in  the  waters  of  the  lake  as  riparian  proprietors  thereon,  and  the  plaintiff 
S.  J.  Duckworth  also  claims  a  right  by  appropriation  to  take  therefrom 
a  quantity  of  water  equal  to  a  continuous  flow  of  250  miners'  inches  under 
a  four-inch  pressure.  The  lake  contains  an  area  of  about  70  acres.  The 
defendant  Watsonville  Water  &  Light  Company  owns  65  acres  of  the 
bed  and  surface  of  the  lake  and  all  the  land  surrounding  it,  except  the 
land  of  plaintiffs  and  two  other  tracts  of  small  extent,  and  claims  the 
ownership  of,  and  the  right  to  take  and  use,  all  the  waters  of  the  lake. 
The  purpose  of  the  action,  as  stated  in  the  complaint,  is  to  have  the 
plaintiffs'  alleged  rights  determined.  The  corporation  defendant  filed 
a  cross-complaint,  alleging  ownership  of  all  the  water  of  the  lake,  and 
asking  that  its  right  be  also  determined.  Judgment  was  given  declaring 
that  the  plaintiffs  have  the  right  to  take  from  the  lake  and  use  upon 
their  land  as  much  water  as  they  could  beneficially  use  thereon,  not  ex- 
ceeding a  continuous  flow  of  250  miners'  inches,  and  enjoining  the  de- 
fendants from  interfering  with  the  plaintiffs'  right  to  such  use,  and  that 
the  defendant  corporation  take  nothing  by  its  cross-complaint.  The 
defendants  appealed  from  the  judgment  within  60  days  after  its  rendition, 
and  present  the  evidence  in  the  record  by  a  bill  of  exceptions. 

The  plaintiffs  derive  their  title  to  the  land  from  Carmen  Amesti  de  Mc- 
Kinlay,  who,  on  May  13,  1901,  leased  the  land  to  S.  J.  Duckworth,  and 
on  August  6,  1901,  conveyed  it  to  the  plaintiff  Flora  McKinlay  Duck- 
worth, subject  to  the  lease.  In  1885,  while  Carmen  Amesti  de  McKinlay 
was  the  owner  in  fee  of  the  land,  she  made  conveyances  to  the  defendants 
Smith  and  Montague,  whereby  she  granted  to  them  "all  and  singular  the 
water  and  riparian  and  water  rights  and  privileges  of  every  kind,  char- 
acter and  description  which  belong,  or  in  any  manner  pertain  to,"  the 
320  acres  of  land,  the  same  being  particularly  described  therein,  re- 
serving, however,  the  right  to  water  for  domestic  use  and  watering  stock 
thereon.  On  January  21,  1897,  Smith  and  Montague  conveyed  to  the 
Watsonville  Water  &  Light  Company  all  the  waters,  right,  and  privi- 
leges conveyed  to  them  by  Carmen  Amesti  de  McKinlay  as  aforesaid. 


142  Water  and  Mineral  Cases.  [California 

Smith  and  Montague  thereupon,  so  far  as  appears,  ceased  to  have  any 
interest  in  the  property  in  controversy.  They  joined  in  the  answer  and 
join  also  in  the  appeal.  There  are  some  indications  in  the  evidence  that 
their  holding  prior  to  1897  was  for  the  benefit  of  the  water  company.- 
In  any  event,  as  they  have  no  present  interest,  their  position  in  the 
case  need  not  be  further  discussed.  It  is  claimed  that  the  evidence  does 
not  sustain  the  findings.  As  to  several  of  them,  we  think  this  contention 
is  well  founded. 

1.  There  was  an  outlet  to  Pinto  Lake,  through  which  water  usually 
flowed  from  the  lake  during  the  rainy  season  of  each  year,  but  which 
was  dry  at  all  other  times.  One  Grimmer  owned  a  tract  of  land  which 
abutted  upon  this  outlet  at  a  point  some  distance  below  the  lake.  On 
March  21,  1903,  Grimmer  conveyed  to  S.  J.  Duckworth  "all  riparian 
rights  and  other  water  rights  and  water"  which  he  possessed  in  this 
outlet  as  appurtenant  or  belonging  to  this  tract  of  land.  This  conveyance 
was  made  after  the  beginning  of  the  action,  but  before  the  filing  of 
the  cross-complaint,  and  in  his  answer  to  the  cross-complaint  Duckworth 
averred  that  by  virtue  thereof  he  was  a  riparian  owner  to  the  waters 
of  the  lake.  The  court  found,  in  accordance  with  this  answer,  that 
the  plaintiff  S.  J.  Duckworth  "is  a  riparian  owner  of  the  waters  of  said 
Pinto  Lake,  its  tributaries  and  outlet,"  by  virtue  of  this  deed.  Even  if  we 
consider  the  lake  with  its  tributaries  and  outlet  as  forming  one  contin- 
uous stream  of  water,  as  the  lower  court  found  it  to  be,  this  finding  is 
not  technically  true.  Every  owner  of  land  upon  a  stream  is,  in  some 
respects,  interested  in  the  entire  stream.  He  has  the  right  to  use  the  wa- 
ter as  it  passes  his  land  for  domestic  purposes  thereon,  and  to  take  out 
a  reasonable  portion  thereof  for  the  irrigation  of  his  abutting  land,  and 
for  the  protection  of  this  right,  which  begins  only  when  the  water 
reaches  his  land.  He  has  a  certain  right  with  regard  to  all  the  waters 
of  the  stream  above  his  land — the  right  to  insist  that  it  shall  not  be 
polluted  to  his  injury  nor  diminished  from  use  by  other  riparian  owners 
above,  so  as  to  deprive  him  of  his  just  portion,  and,  perhaps,  as  to  other 
than  riparian  owners,  the  right  to  prevent  any  substantial  diminution 
of  the  amount  of  water  which  would  naturally  flow  to  his  land.  If 
nothing  more  than  this  was  meant  by  the  finding  in  question,  we  could 
not  say  that  it  was  not  supported  by  some  evidence,  nor  that  it  was  not 
a  correct  general  statement  of  the  right  of  Duckworth  under  the  Grim- 
mer deed.  But  the  finding  is  that  Duckworth  thereby  became  a  "ripar- 
ian owner"  of  the  waters  of  the  lake,  and  it  appears  that,  under  it,  he 
claims  some  right  as  against  the  defendant  water  company,  to  take  water 
from  the  lake  for  use,  not  on  the  Grimmer  land,  but  on  the  Duckworth 
land,  which  abuts  on  the  lake  far  from  the  outlet,  and  that  not  only  during 


1907J      Duckworth  et  al.  v.  Water  &  Light  Co.  et  al.  143 

the  rainy  season,  or  at  such  times  as  there  is  water  flowing  to  the  Grim- 
mer land,  but  during  all  seasons,  and  when  the  outlet  is  entirely  dry. 
The  court  below  seems  to  have  intended  this  finding  to  declare  some 
such  right.  This  claim  is  contrary  to  the  doctrine  of  riparian  rights,  and 
to  the  general  principles  of  law  as  well.  Neither  a  riparian  proprietor 
nor  an  appropriator  has  title  or  ownership  in  the  water  of  the  stream 
before  it  reaches  his  land,  or  point  of  diversion,  respectively.  This  has 
been  expressly  decided  with  respect  to  appropriators.  Parks  M.  Co.  v. 
Hoyt,  57  Cal.  46;  Riverside  W.  Co.  v.  Gage,  89  Cal.  418,  26  Pac.  889; 
McGuire  v.  Brown,  106  Cal.  670,  39  Pac.  1060,  30  L.  R.  A.  384.  The 
same  rule  applies  to  the  riparian  owner.  As  a  riparian  owner,  Grimmer 
had  no  title  to  the  water,  except  as  it  passed  in  front  of  his  land  and 
constituted  the  stream.  The  right  or  title  to  the  stream  as  it  passed  was 
a  part  and  parcel  of  his  land,  a  part  of  the  realty.  See  cases  last  cited. 
Being  a  part  of  his  realty  on  his  land,  it  was  also  part  of  the  realty  of 
other  riparian  owners  at  the  points  where  it  passed  over  their  lands. 
Hence  the  title  of  each  to  the  water  exists  only  during  such  passage,  and 
the  right  of  each  in  the  water  during  its  course  above  consists  only  of 
the  right  to  use  such  means  as  are  necessary  to  preserve  it  until  it  reaches 
his  land.  Grimmer  had  the  right  to  use  a  reasonable  portion  of  the 
water  running  in  the  outlet  by  his  land  for  the  irrigation  of  his  land 
riparian  thereto,  and  to  take  the  whole  of  it,  if  necessary,  for  domestic 
purposes.  This  right  exists  because  the  stream  runs  by  the  land,  and 
thus  gives  the  natural  advantage  resulting  from  the  relative  situation. 
When  the  stream  ceased,  and  the  channel  became  dry,  he,  for  the  time 
being,  ceased  to  be  a  riparian  owner,  so  far  as  a  present  use  of  the 
water  was  concerned.  His  land  did  not,  at  those  times,  border  upon 
any  stream.  It  did  not  then  possess  any  natural  right  to  the  use  of  the 
water  standing  in  pools  or  lakes  at  points  above  his  land.  During  such 
dry  periods,  he  could  obtain  the  use  of  water  from  such  pools  or  lakes 
only  by  convention  with  the  owners  of  the  lands  abutting  upon  them. 
He  would  not  have  it  by  virtue  of  any  right  pertaining  to  his  own  land. 
Furthermore,  his  riparian  right  is  limited  to  his  riparian  land.  It  gave  no 
right  to  use  any  of  the  water  of  the  stream  for  any  purpose,  upon  land 
not  riparian,  nor  upon  any  riparian  land  other  than  his  own.  No  one  can 
sell  or  convey  to  another  that  which  he  does  not  himself  own.  Grimmer 
could  not,  by  a  transfer  of  his  riparian  rights,  sell  to  the  plaintiff,  as 
against  third  persons  having  interests  in  the  water,  the  right  to  use  the 
water  upon  any  land,  riparian  or  nonriparian,  except  his  own,  to  which 
it  originally  attached.  His  deed  operated  to  prevent  him  from  com- 
plaining of  a  diversion,  but  it  did  not  affect  other  parties.  It  does  not 
appear  that  Grimmer  had  any  water  rights  except  his  right  as  riparian 
owner  to  the  use  of  the  water  of  the  outlet.     It  follows,  therefore,  that 


144  Water  and  Mineral  Cases.  [California 

Duckworth  did  not  obtain  anything  by  the  Grimmer  deed  except  the 
right  to  use  the  water  of  the  outlet  on  the  Grimmer  land,  when  any 
water  was  flowing  therein,  and  an  estoppel  against  Grimmer  to  prevent 
complaint  by  him  against  any  use  of  such  water  which  Duckworth  might 
make  to  the  injury  of  the  Grimmer  riparian  right,  as  above  defined.  It 
did  not  in  any  respect  add  to  his  rights  to  take  water  from  the  lake  for 
use  on  the  Duckworth  land,  as  against  the  defendants,  or  as  against  any 
one    except  Grimmer  and  his  successors  in  interest. 

2.  The  findings  further  state  that  the  water  company  has  never  exer- 
cised or  used  any  of  the  water  rights  derived  from  the  deeds  from 
Carmen  Amesti  de  McKinlay  to  Smith  and  Montague.  This  is  true  in 
the  literal  sense  that  it  has  not  used  any  water  upon  the  land  to  which 
these  rights,  prior  to  those  deeds,  attached.  But  it  appears  from  the  evi- 
dence that  the  water  company  was  pumping  water  from  the  lake  during 
the  eight  years  extending  from  December,  1894,  to  December,  1902. 
The  amount  is  not  shown,  but  it  was  enough,  during  part  of  the  time, 
at  least,  according  to  the  testimony  of  William  A.  White,  its  superin- 
tendent, to  furnish  water  to  several  strawberry  growers  for  irrigation 
of  their  plants,  and  so  much  that,  if  the  plaintiffs  took  the  250  inches 
they  claim,  the  two  diversions  would  not  leave  much  water  in  the  lake 
at  the  end  of  the  dry  season.  This  evidence  is  not  as  definite  as  it  should 
have  been ;  but,  there  being  no  evidence  to  the  contrary,  it  established  the 
fact  that  the  company  had  taken  a  substantial  quantity  of  water  from 
the  lake  during  the  time  specified.  Such  taking  would  have  been  contrary 
to  the  riparian  rights  attached  to  the  Duckworth  land,  if  they  had  re- 
mained unsevered  therefrom.  By  reason  of  its  purchase  of  these  riparian 
rights,  the  company  possessed  the  right,  so  far  as  that  land  and  its  own- 
ers were  concerned,  to  use  the  whole,  or  any  part,  of  the  waters  of  the 
lake  except  such  as  were  necessary  for  domestic  use  and  for  the  water- 
ing of  stock  thereon.  The  pumping  of  the  water  was  done  in  the  exer- 
cise of  this  right,  and  it  was  a  right  obtained  by  virtue  of  the  McKinlay 
deeds.     This  finding  is  therefore  contrary  to  the  evidence. 

3.  There  is  a  finding  to  the  effect  that,  after  the  execution  of  the 
deeds  by  Carmen  Amesti  de  McKinlay  to  Smith  and  Montague,  in  1895, 
she  continued  in  possession  of  the  water  and  water  rights  thereby  granted 
to  them,  and  that  she  and  the  plaintiffs,  as  her  successors,  did  not  re- 
linquish possession  thereof  to  the  grantees,  but  have  ever  since  then  re- 
mained in  possession  thereof,  and  that  they  had  been  in  the  open,  notori- 
ous, hostile,  and  adverse  possession  thereof  for  more  than  five  years 
immediately  before  the  commencement  of  this  action.  This  finding  has 
no  support  in  the  evidence.  They  did,  indeed,  remain  in  possession  of 
the  land,  and  continued  to  exercise  all  ordinary  acts  of  ownership  over 
it,  including  the  use  of  fne  water  of  the  lake  for  the  watering  of  stock. 


1907]        DUCKWOKTH  ET  AL.  V.  WaTEK  &  LlGHT  Co.  ET  AL.  145 

This  latter  use  of  the  water,  however,  was  reserved  in  the  deed,  and 
hence  it  was  not  one  of  the  rights  granted.  Even  if  it  had  been  granted, 
the  adverse  use  for  the  watering  of  stock  alone  could  gain  a  right  only 
to  the  extent  of  the  use,  and  it  would  not  confer  any  right  to  the  addi- 
tional use  of  water  for  the  irrigation  of  land.  There  is  no  evidence 
that  Mrs.  McKinlay,  or  either  of  the  plaintiffs,  ever  made  anv  use  of 
the  water  other  than  for  the  watering  of  stock,  or  claimed  the  right  to- 
do  so  as  against  the  defendants,  until  November,  1902,  a  few  months 
before  this  action  was  begun.  The  finding  seems  to  have  been  based  on 
the  fact  that  the  defendants  never  entered  upon  the  land  of  the  plaintiffs 
for  the  purpose  of  exercising  or  asserting  the  right  to  use  the  waters  of 
the  lake  which  they  obtained  under  the  McKinlay  deeds.  But  it  was  not 
requisite  to  the  exercise  of  the  rights  granted  by  the  deeds  that  they  should 
enter  upon  the  land,  unless  it  became  necessary  to  do  so  in  order  to  get 
the  water  from  the  lake.  The  deed  was  evidently  procured  to  protect  the 
grantees  from  interference  in  their  proposed  diversion  of  water  from  the 
lake.  They  could  get  the  water  from  any  other  point  on  the  lake  as  well 
as  from  the  limits  of  the  McKinlay  land,  and  it  appears  that  they  took  it 
form  the  lower  end  of  the  lake.  This  was  a  taking  from  the  McKinlay 
land,  as  well  as  from  all  the  other  land  on  the  borders  of  the  lake.  The 
force  of  gravity  would  accomplish  that.  The  use  which  was  made  of  the 
land  by  the  plaintiffs  and  McKinlay  was  not  antagonistic  to  the  right 
the  defendants  had  to  the  water,  under  the  grant.  It  is  not  true,  there- 
fore, that  the  grantor  and  her  predecessors  continued  or  remained  in  pos- 
session of  the  rights  of  the  grantee,  nor  that  said  rights  were  not  re- 
linquished to  the  grantees,  nor  that  the  possession  of  the  plaintiffs  and 
their  predecessor  extended  to  the  water  rights  granted,  or  was  hostile 
and  adverse  to  the  grantee,  or  open  and  notorious  with  respect  thereto. 
According  to  the  evidence,  their  actual  use  of  the  water,  if  any,  did  not 
begin  under  their  adverse  claim,  until  the  day  of  the  trial  in  the  lower 
court. 

4.  There  is  some  evidence  that  Pinto  Lake,  with  its  tributaries  and 
outlet,  during  the  rainy  season,  constituted  a  running  stream  of  water. 
It  is  clear  that  during  the  dry  seasons  there  was  no  water  flowing  out  of 
the  lake,  but  there  is  evidence  that  during  that  period  there  was  a  slight 
flow  from  a  tributary  into  the  lake.  We  cannot  agree  with  the  appellant 
in  his  contention  that  the  finding  that  the  lake.,  or  its  tributaries,  constitut- 
ed a  running  stream  is  not  sustained  by  the  evidence.  We  think  the  bet- 
ter doctrine,  in  respect  to  the  character  of  a  stream  from  which  the  stat- 
ute provides  for  appropriations,  is  that  it  is  not  necessary  that  the  stream 
should  continue  to  flow  to  the  sea,  or  to  a  junction  with  some  other  stream. 
It  is  sufficient  if  there  is  a  flowing  stream ;  and  the  fact  that  it  ends  either 
in  a  swamo,  in  a  sandy  wash  in  which  the  water  disappears,  or  in  a  lake 
W.  &  M.— 10 


146  Water  and  Mineral  Cases.  [California 

in  which  it  is  accumulated  upon  the  surface  of  the  ground,  will  not  defeat 
the  right  to  make  the  statutory  appropriation  therefrom,  and  we  can  see 
no  reason  why  the  appropriation,  in  such  a  case,  may  not  be  made  from 
the  lake  in  which  the  stream  terminates,  and  which  therefore  constitutes 
a  part  of  it,  as  well  as  from  any  other  part  of  the  water  course. 

5.     The  only  use  which  the  water  company  makes  of  the  water  is  to 
take  it  to  nonriparian  lands  to  be  used  thereon  for  irrigation.    Respond- 
ents claim  that  the  only  right  of  the  water  company  to  the  water,  shown 
in  the  case,  consists  of  the  riparian  rights  pertaining  to  the  narrow  strip 
of  land  belonging  to  the  water  company  surrounding  the  greater  part  of 
the  lake,  and  the  riparian  rights  under  the  McKinlay  deeds,  and  that  the 
use  made  of  it  is  not  in  the  exercise  of  either  of  these  rights,  but  is  in- 
consistent with  each  of  them.    In  regard  to  this  claim  it  is  to  be  observed 
that,  so  far  as  the  use  made  of  the  water  by  the  water  company  may  affect 
the  rights  claimed  by  the  Duckworths  as  riparian  owners  of  the  McKin- 
lay land,  they  have  no  ground  of  complaint,  being  estopped  by  the  McKin- 
lay deeds,  and  not  having  regained  the  rights  by  adverse  possession.    The 
estoppel  does  not  extend  to  the  water  necessary  for  domestic  use  and  for 
stock,  but  their  right  to  that  extent  is  not  in  dispute,  nor  have  they  been 
deprived  of  it  by  the  water  company.    But  S.  J.  Duckworth  claims  a  right 
to  a  part  of  the  water  by  appropriation,  and  with  respect  to  the  right  thus 
claimed  he  has  a  status  which  entitles  him  to  challenge  the  right  of  the 
water  company.    His  privity  with  the  McKinlay  deed  does  not  estop  him 
from  making  an  appropriation  of  any  water  in  the  lake  that  may  be  sub- 
ject to  appropriation,  nor  from  demanding  that  the  water  company  shall 
not  make  a  greater  use  of  the  water  than  it  is  authorized  to  do  by  the 
rights  which  it  is  shown  to  have,  if  such  use  interferes  with  an  appropria- 
te right  possessed  by  him.     But  the  claim  that  the  water  company  has 
not  established  any  other  right  is  not  maintainable.     Its  cross-complaint 
alleges  that  it  is,  and  for  a  long  time  has  been,  "the  owner  and  entitled  to 
the  exclusive  use  of  all  the  waters"  of  Pinto  Lake.    The  plaintiffs,  in  their 
answer  thereto,  deny  that  the  water  company  is,  or  has  been,  "the  owner 
and  entitled  to  the  exclusive  use  of  all  the  waters"  of  the  lake.    That  is  not 
a  good  traverse  of  the  allegation.    It  is  an  admission  that  the  water  com- 
pany is  entitled  to  substantially  all  of  the  water.    Fitch  v.  Bunch..  30  Cal. 
208;  Blood  v.  Light,  31  Cal.  115 ;  Fish  v.  Redington,  31  Cal.  185 ;  Reed  v. 
Calderwood,  32  Cal.  \og ;  Doll  v.  Good,  38  Cal.  287.     This  allegation  of 
the  cross-complaint,  therefore,  stands  as  an  admitted  fact  of  the  case,  ex- 
cept so  far  as  it  is  inconsistent  with  the  affirmative  allegations  of  the  an- 
swer thereto  and  of  the  original  complaint.    The  effect,  for  the  purposes 
of  the  trial,  was  to  establish  the  fact  that  the  water  company  owns  and  has 
the  exclusive  right  to  use,  for  any  purpose  and  at  any  place,  all  of  the 
water  of  the  lake,  excepting  such  portion  thereof,  or  right  thereto,  as  is 


1907]        DUCKWOKTH  ET  AL.  V.  WaTEK  &  LlGHT  Co.  ET  AL.  147 

alleged  and  was  proven  to  belong  to  the  plaintiffs  or  either  of  them.  In- 
asmuch as  the  evidence  did  not  show,  and  the  court  did  not  find,  that  the 
alleged  claims  of  plaintiffs  included  all  the  waters  of  the  lake,  the  judg- 
ment that  the  defendants  take  nothing  is  contrary  to  the  evidence  and  to 
this  admission  of  the  pleadings.  The  existing  rights  of  other  riparian 
owners,  not  parties  to  this  suit,  are  not  material  to  this  case. 

6.  The  right  to  appropriate  water,  under  the  provisions  of  the  Civil 
Code,  is  not  confined  to  streams  running  over  public  lands  of  the  United 
States.  It  exists  wherever  the  appropriator  can  find  water  of  a  stream 
which  has  not  been  appropriated,  and  in  which  no  other  person  has  or 
claims  superior  rights  and  interests.  And  the  right  cannot  be  disputed 
except  by  one  who  has  or  claims  a  superior  right  or  interest,  and  by  him 
only  so  far  as  there  is  a  conflict.  It  cannot  be  vicariously  contested  by 
another  on  behalf  of  the  owner  of  the  better  right.  The  effect  of  an 
appropriation  under  the  statute,  when  completed,  is  that  the  appropriator 
thereby  acquires  a  right  superior  to  that  of  any  subsequent  appropriator 
on  the  same  stream ;  but  he  acquires  thereby  no  right  whatever  as  against 
rights  existing  in  the  water  at  the  time  his  appropriation  was  begun.  An 
appropriation  does  not,  of  itself,  deprive  any  private  person  of  his  rights. 
It  merely  vests  in  the  appropriator  such  rights  as  have  not  previously  be- 
come vested  in  private  ownership  either  by  virtue  of  some  riparian  right, 
or  because  of  prior  statutory  or  common-law  appropriation  and  use.  It 
affects  and  devests  the  riparian  rights  otherwise  attaching  to  public  lands 
of  the  United  States,  solely  because  the  act  of  Congress  declares  that 
grants  of  public  lands  shall  be  made  subject  to  all  water  rights  that  may 
have  previously  accrued  to  any  person  other  than  the  grantee.  An  appro- 
priation of  water  and  use  thereunder  does  not  become  effective  to  devest 
private  rights  in  the  stream,  unless  it  has  been  continued  adversely  thereto 
for  the  period  of  five  years,  under  such  circumstances  as  to  gain  a  title 
by  prescription,  and  then  only  to  the  extent  of  the  use.  The  amount 
claimed  in  the  notice  is  no  measure  of  the  right. 

It  follows  that  the  attempted  appropriation  by  S.  J.  Duckworth  of  a  part 
of  the  water  of  the  lake  did  not  devest  or  affect  the  existing  rights  of  the 
water  company  either  as  riparian  owners  or  by  virtue  of  a  prior  appro- 
priation or  use.  And  so  far  as  his  claim  was  adverse  to,  and  in  conflict 
with,  the  prior  rights  and  interests  of  the  water  company,  it  was  entitled 
to  a  decree  quieting  its  title  against  him  and  enjoining  him  from  asserting 
such  adverse  title.  This  applies  to  the  riparian  right  which  attached  to 
its  strip  of  land  partially  surrounding  the  lake  as  well  as  to  any  other 
prior  right  which  it  possessed  to  the  water.  The  fact  that  the  company 
had  not  used  the  water  on  this  narrow  strip  did  not  affect  the  riparian 
right.  A  riparian  right  is  neither  gained  by  use,  nor  lost  by  disuse,  and, 
for  the  protection  of  these  riparian  rights,  the  water  company  is  entitled 


148  Water  and  Mineral  Cases.  [California 

to  a  judgment  declaring  Duckworth's  appropriation  subject  to  the  riparian 
rights  pertaining  to  its  lands  and  subject  to  all  other  prior  rights  of  the 
water  company,  so  that  the  continued  use  of  the  water  by  Duckworth 
shall  not  be  adverse,  and  shall  not  ripen  into  an  easement,  which,  in  effect, 
would  devest  the  rights  of  the  water  company.  Moore  v.  Clear  L.  W.  Co., 
68  Cal.  146,  8  Pac.  816;  Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900;  Heil- 
bron  v.  Fowler  S.  C.  Co.,  75  Cal.  426,  17  Pac.  535,  7  Am.  St.  Rep.  183; 
Conkling  v.  Pacific  I.  Co.,  87  Cal.  296,  25  Pac.  399 ;  Walker  v.  Emerson, 
89  Cal.  456,  26  Pac.  968;  Spargur  v.  Heard,  90  Cal.  221,  27  Pac.  198; 
Anaheim  U.  W.  Co.  v.  Fuller  (decided  1907),  88  Pac.  978. 

7.  We  have  said  that,  because  of  the  McKinlay  deeds,  and  so  far  as  the 
claim  of  plaintiffs  as  riparian  owners  is  concerned,  the  water  company 
can  use  the  water  for  any  purpose,  at  any  place,  and  in  any  quantity  which 
leaves  plaintiffs  enough  for  stock  and  domestic  purposes ;  but  the  mere 
fact  that  the  company  is  a  riparian  owner  on  the  lake  gives  it  no  right 
whatever  to  the  water  of  the  lake,  except  for  actual  beneficial  use  upon 
the  land  to  which  the  riparian  rights  attach.  The  evidence  does  not  show 
that  it  is  using  the  water  on  that  land  at  all.  It  is  carrying  the  water  to 
other  lands  and  places,  for  use  and  sale.  The  admission  of  the  plead- 
ings, above  referred  to,  relieves  it  of  the  necessity  of  establishing  its  right 
to  do  this,  except  as  it  may  be  affected  by  evidence  in  support  of  the  spe- 
cific rights  alleged  by  the  plaintiffs ;  but  the  right  it  actually  exercises  is 
not  a  right  derived  from  the  fact  of  its  riparian  ownership  of  the  greater 
part  of  the  lake  shore  and  bed. 

8.  The  claim  of  the  respondents  that  the  grant  by  Mrs.  McKinlay  of 
the  rights  pertaining  to  the  land  described  in  the  deeds  extended  only  to 
the  water  then  standing  in  the  lake,  and  that  as  soon  as  that  water  was 
exhausted  by  use,  run-off,  or  evaporation,  the  rights  ceased  to  exist,  is 
utterly  baseless,  and  needs  no  discussion,  further  than  to  deny  it. 

9.  In  its  conclusions  of  law,  the  court  declared  that  the  defendants 
are  estopped  from  claiming  any  rights  under  the  McKinlay  deeds.  We 
find  nothing  in  the  evidence  justifying  this  conclusion.  The  plaintiffs 
did  not  make  an  adverse  claim  until  November,  1902,  and  the  water  com- 
pany, about  the  same  time,  served  on  them  written  notice  of  its  claim 
to  the  water  under  the  said  deed.  This  may  not  have  been  necessary,  but 
it  undoubtedly  prevented  any  estoppel  from  arising  in  their  favor  by 
reason  of  any  subsequent  expenditure  of  money  by  them  in  the  diversion 
of  water  in  pursuance  of  their  adverse  claim,  granting  that  such  expend- 
iture would  otherwise  have  created  an  estoppel. 

10.  We  have  said  that  the  water  company  is  entitled  to  a  judgment 
protecting  its  riparian  right,  although  it  has  not  used,  and  does  not 
immediately  propose  to  use,  the  water  on  its  riparian  land.  This  rule 
does  not  apply  to  any  right  which  it  has  acquired  by  appropriation  or  use 


1907]        DUCKWOETH  ET  AL.  V.  WATER  &  LlGHT  Co.  ET  AL.  149 

upon  other  lands,  and  this  appears  to  be  the  source  of  the  right  which 
it  has  been  exercising.  Such  right  depends  upon  use,  and  ceases  with 
disuse.  Civ.  Code,  §  141 1.  It  extends  only  to  the  water  actually  taken 
and  used.  The  consequence  is  that,  so  far  as  the  protection  of  this 
right,  and  the  water  necessary  to  supply  this  use,  are  concerned,  the  water 
company  is  not  entitled  to  prevent  an  appropriation  or  use  by  others  of 
the  surplus  of  the  waters  of  the  lake,  if  there  is  any.  So  long  as  there 
is  enough  to  supply  it  with  the  quantity  of  water  which  it  has  been  so 
using,  it  has,  in  the  protection  of  this  right,  no  concern  with  the  disposi- 
tion of  the  remainder.  It  has  the  right,  of  course,  to  insist  upon  a  rea- 
sonably ample  quantity  to  last  through  the  entire  season,  until  rains  re- 
new the  supply,  and  also  to  enjoin  a  depletion  of  the  lake  which  will 
lower  the  water  surface  so  as  to  substantially  increase  the  cost  of  making 
the  diversion  it  is  entitled  to  make. 

11.  It  may  be  that,  upon  another  trial,  the  sufficiency  of  the  notice 
of  appropriation  posted  by  S.  J.  Duckworth  may  not  be  important ;  but, 
as  this  cannot  be  decided  here,  it  is  necessary  to  notice  the  objections 
urged  against  it.  The  notice  states  that  the  water  claimed  therein  is 
to  be  used  for  irrigation  upon  the  land  owned  by  Mrs.  Duckworth,  de- 
scribing it.  This  is  a  sufficient  statement  of  the  purpose  for  which  the 
water  was  claimed  and  the  place  of  intended  use,  and  it  is  not  vitiated 
by  the  additional  statement  in  the  notice  that  it  was  also  to  be  used  for 
irrigation  by  other  parties  to  whom  Duckworth  might  furnish  it  upon 
other  land,  which  was  not  described.  It  was  a  good  notice  for  the  ap- 
propriation of  water  for  use  on  the  place  designated,  at  all  events.  It 
states  that  the  water  is  to  be  conveyed  to  the  place  of  use  "by  a  six-inch 
pipe,  or  by  a  pipe  of  other  dimensions."  This  we  consider  sufficient 
to  authorize  a  diversion  of  the  quantity  that  could  be  carried  in  a  six-inch 
pipe,  and  not  exceeding  the  250  miners'  inches  claimed  as  the  maximum. 
Whether  or  not  it  would  justify  a  diversion,  within  the  amount  limited, 
if  carried  in  a  pipe  more  than  six  inches  in  diameter,  is  a  question  not 
presented,  inasmuch  as  it  does  not  appear  that  such  pipe  was  proposed 
to  be  used. 

12.  It  is  claimed  by  the  respondents  that  they  acquired  their  title  from 
Mrs.  McKinlay  to  the  land  in  question  by  purchase  for  a  valuable  con- 
sideration, and  without  actual  notice  of  the  deeds  to  Smith  and  Montague, 
and  that  the  record  of  those  deeds  is  ineffectual  to  constitute  constructive 
notice-  to  them,  because  the  acknowledgment  of  each  deed  is  defective. 
The  acknowledgments  were  made  before  a  notary  public.  The  certifi- 
cates recite  his  name  and  official  character  in  the  usual  form.  They  are 
signed  by  him,  with  the  addition  of  the  words  "Notary  Public"  after  his 
signature.  The  Code  requires  that  the  officer  certifying  to  an  acknowledg- 
ment must  affix  thereto  his  signature,  followed  by  the  name  of  his  office. 


150  Water  and  Mineral  Cases.  [California 

Civ.  Code,  §  1193.  The  objection  is  that  the  words  "notary  public"  are 
not  a  sufficient  statement  of  the  name  of  the  office.  The  certificates  in 
question  begin  thus:  "State  of  California,  Monterey  County— ss."— 
and  each  recites  that  "before  me,  John  Ruurds,  notary  public  in  and  for 
said  Monterey  County,  personally  appeared,"  etc.  In  view  of  this  state- 
ment, we  think  the  name  of  the  office  is  sufficiently  stated  after  the 
signature.  There  is  nothing  in  Emeric  v.  Alvarado,  90  Cal.  479,  27  Pac. 
356,  that  is  in  conflict  with  this  conclusion.  In  that  case  the  body  of  the 
certificate  stated  that  the  officer  was  a  notary  public  of  the  city  and  county 
of  San  Francisco,  while  the  name  of  the  office  after  the  signature  was 
given  as  "Notary  Public,  Contra  Costa  County."  The  officer  was  in 
fact  a  notary  public  of  Contra  Costa  County,  and  the  acknowledgment 
was  taken  in  that  county,  though  the  contrary  was  stated  in  the  certificate. 
It  was  held  that  the  certificate  was  invalid  because  it  did  not,  in  the 
body  of  it,  truly  recite  the  "name  and  quality  of  the  officer"  or  the  venue, 
as  the  law  required,  and  that  the  words,  "Notary  Public,  Contra  Costa 
County,"  following  the  signature,  were  not  sufficient  to  make  it  good. 
The  two  statements  were  inconsistent,  and  the  certificate  afforded  no 
means  of  ascertaining  which  was  correct.  Here  there  is  no  inconsistency, 
and  the  statement  after  the  signature,  construed  according  to  the  ordinary 
usage  of  the  language,  and  in  connection  with  the  recital,  means  that 
the  person  signing  was  a  notary  public  of  Monterey  County.  This  is  the 
proper  construction,  and  therefore  it  does  correctly  state  the  name  of  the 
office,  as  the  Code  prescribed. 

In  conclusion,  we  deem  it  proper  to  say  that,  upon  another  trial,  if  the 
court  shall  decide  that  either  of  the  parties  possess  rights  to  the  water,  ac- 
quired by  appropriation  under  the  statute,  or  by  diversion  and  use,  it  will 
be  necessary  to  ascertain  and  declare  the  amount  of  water  covered  by 
the  right  owned  by  each  respectively.  It  is  not  necessary  to  mention  the 
other  points  discussed  in  the  briefs. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 

We  concur:  ANGELLOTTI,  J.;  SLOSS,  J.;  McFARLAND,  J.; 
HENSHAW,  J.;  LORIGAN,  J. 


1910]  Hall  v.  Hood  River  Irrigation  District.  151 


HALL  v.  HOOD  RIVER  IRRIGATION  DISTRICT. 

[Supreme  Court  of  Oregon,  August  4,  1910.] 
—  Or.  — <—,  110  Pac.  405. 

1.  Waters     and     Water     Courses — Irrigation      Districts — Power     to     Issue 

Second  Series  of  Bonds. 
Under  section  4714  of  the  Code,  as     amended     in   1909,     irrisation  district  has 
power  to  issue  additional  bonds  after  having  exhausted  the  funds  received  from  a 
sale  of  bonds    prior  to  amendment. 

2.  Municipal    Corporations — Issuance  of   Bonds  by   Must    Be   Authorized   by 

Statute. 
Municipalities  cannot  issue  bonds  unless  authority  to  do  so  is  expressly  given  or 
clearly   implied. 

Action  to  enjoin  the  sale  of  bonds  issued  by  irrigation  company  under 
provisions  of  B.  &  C.  Comp.,  §  4714,  as  amended  by  Gen.  Laws,  1909, 
p.  364.    Judgment  for  defendant  upon  sustaining  of  demurrer.    Affirmed. 

This  is  a  suit  by  Charles  Hall  to  enjoin  the  sale  of  a  second  bond 
issue  of  $75,000  issued  by  the  Hood  River  Irrigation  Company.  The 
complaint  alleges : 

"(1)  That  ever  since  the  month  of  May,  in  the  year  1905,  the  said 
defendant  was  and  is  now  an  irrigation  district,  duly  organized  and 
existing  and  doing  business  under  and  by  virtue  of  the  provisions  of 
chapter  5  of  title  39  of  Bellinger  &  Cotton's  Annotated  Codes  and 
Statutes  of  Oregon,  and  the  amendments  thereto.  That  said  irrigation 
district  is  situated  wholly  within  Hood  River  County,  in  the  State  of 
Oregon. 

"(2)  That  plaintiff  at  and  during  all  the  times  herein  mentioned 
was,  and  is  now,  the  owner  and  holder  of  title  to  the  following  described 
real  property  situated  in  said  district,  to  wit :  Beginning  at  a  point  780.3 
feet  south  from  the  northwest  corner  of  the  N.  W.  *4  of  section  17, 
township  2  N.,  range  10  E.  of  the  Willamette  meridian,  said  point  of 
beginning  being  on  section  line  in  township  2  N.,  range  10  E. ;  thence 
east  2,795.2  feet,  south  471  feet,  west  2,795.2  feet,  to  section  line  between 
sections  17  and  18;  thence  north  471  feet,  to  place  of  beginning,  con- 
taining thirty  acres  of  land  more  or  less. 

"(3)  That  said  defendant  heretofore,  between  the  month  of  August, 
in  the  year  1905,  and  the  month  of  October,  in  the  year  1906,  for  the 
purpose    of    constructing   necessary    irrigating   canals    and   works    and 


152 


Water  and  Mineral  Cases. 


[Oregon 


acquiring  necessary  property  and  rights  therefor,  and  for  the  purpose 
of  carrying  out  the  provisions  of  its  organization  duly  and  regularly, 
under  and  by  virtue  of  the  provisions  of  sections  4714,  4715,  and  4716 
of  Bellinger  &  Cotton's  Codes  and  Statutes  of  Oregon,  duly  and  regularly 
issued  and  sold  the  bonds  of  said  irrigation  district  to  the  amount  of 
$100,000,  and  that  said  sum  of  $100,000  was  expended  by  said  defendant 
in  constructing  necessary  irrigating  canals  and  works  and  acquiring  neces- 
sary property  and  rights  therefor,  and  for  the  purpose  of  carrying  out 
the  provisions  of  said  chapter  5  of  said  Bellinger  &  Cotton's  Codes  and 
Statutes  of  the  State  of  Oregon.  That  said  fund  of  $100,000  has  been 
wholly  exhausted  by  said  expenditure,  and  the  same  was  insufficient  for 
the  completion  of  the  plans  and  works  adopted. 

"(4)  Tnat  on  August  9,  1909,  the  said  defendant  by  and  through  its 
board  of  directors  by  resolution  entered  on  its  record,  formulated  a 
general  plan  of  its  proposed  works  in  constructing  its  ditches  and  canals 
in  which  said  general  plan  the  said  board  stated  in  a  general  way  what 
works  and  property  it  proposed  to  purchase  and  acquire,  and  what 
works  it  proposed  to  construct,  and  the  estimated  cost  for  carrying  out 
said  plans,  and  how  it  proposed  to  raise  the  necessary  funds  therefor, 
to-wit,  by  a  bond  issue  and  sale  of  the  same.  That  for  the  purpose  of 
ascertaining  the  estimated  cost  and  value  of  such  works  said  board 
caused  surveys,  examinations,  and  plans  to  be  made  to  demonstrate  the 
practicability  of  such  plan,  and  to  furnish  the  proper  basis  for  an  esti- 
mate of  the  cost  of  carrying  out  the  same.  That  said  surveys,  examina- 
tions, maps,  plans,  and  estimates  were  made  under  the  direction  of  a 
competent  irrigation  engineer  and  certified  to  by  him. 

"(5)  That  thereafter  said  board  submitted  a  copy  of  said  surveys, 
examinations,  maps,  plans,  and  estimates  to  the  state  engineer,  and  with- 
in ninety  days  thereafter  the  said  state  engineer  made  and  filed  a  report 
upon  the  same  with  said  board,  which  said  report  contained  such  mat- 
ters as  in  the  judgment  of  the  state  engineer  were  reasonably  necessary. 
That  the  report  of  the  state  engineer  was  received  by  said  board  in  the 
month  of  January,  in  the  year  19 10,  and  the  said  report  of  the  state  en- 
gineer was  approved  and  accepted  by  said  board,  and  said  board  on  the 


As  to  bonds  of  drainage  districts,  see 
note  to  Sisson  v.  Board  of  Supervisors 
of  Buena  Vista  Co.,  p.  — ,  vol.  3,  this 
series. 

As  to  issuance  of  bonds  by  irrigation 
districts  in  general,  see  parts  III  and 
IV,  note  to  Pioneer  Irrigation  Dist.  v. 
Oregon  Short  Line,  pp.  43,  51,  vol.  1,  this 
series. 


As  to  the  issuance  of  bonds  by  drain- 
age districts  and  various  questions  of 
the  procedure  therefor,  legality  thereof, 
etc.,    see    note    to    Sisson    v.    Board    of 

Supervisors  of  Buena  Vista  Co.,  p.  , 

vol.    3,   this   series. 

As  to  constitutionality  and  legality  of 
bond  issues  by  irrigation  districts  and  at- 
tacks   thereon,    see    part    III,     note     to 


1910] 


Hall  v.  Hood  Eiveb  Irrigation  District. 


153 


i st  day  of  February,  in  the  year  19 10,  proceeded  to  determine  the  amount 
of  money  necessary  to  be  raised  at  $70,000,  and  determined  upon  a  bond 
issue  to  the  amount  of  $70,000.  And  it  was  determined  on  February  1, 
1910,  by  said  board,  for  the  best  interests  of  said  district  to  call  a  special 
election  on  the  26th  day  of  February,  in  the  year  1910,  at  Barrett  school 
house  in  said  irrigation  district,  to  submit  to  the  electors  of  said  district 
the  question  of  whether  or  not  the  bonds  of  said  district  in  the  sum  of 
$70,000  should  be  issued  for  the  purpose  of  building  ditches  and  flumes, 
and  the  carrying  out  of  necessary  work  and  the  payment  of  necessary 
costs  and  expenses  to  supply  water  to  the  landowners  of  said  district  for 
irrigating  purposes. 

"(6)  That  the  following  notice  of  said  election  was  posted  in  three 
public  places  in  each  election  precinct  in  said  district  for  twenty  days 
prior  to  February  26,  19 10,  and  the  same  was  also  published  in  the  Hood 
River  Glacier,  a  newspaper  published  in  Hood  River  County,  Or.,  where 
the  office  of  the  board  of  directors  of  said  district  is  kept,  once  a  week 
for  at  least  three  successive  weeks  prior  to  said  election:  'Notice  of 
Special  Bond  Election,  Hood  River  Irrigation  District,  February  26, 
1910.  Notice  is  hereby  given,  pursuant  to  order  of  the  board  of  directors 
of  the  Hood  River  Irrigation  District,  that  a  special  bond  election  will 
be  held  at  the  Barrett  school  house  in  said  district,  Hood  River  County, 
Oregon,  on  Saturday,  the  26th  day  of  February,  1910,  at  which  time  there 
will  be  submitted  to  the  qualified  electors  of  said  district  the  question  of 
issuing  the  bonds  of  the  district  in  a  sum  not  exceeding  $70,000  (seventy 
thousand  dollars)  for  the  purpose  of  building  ditches,  flumes,  and  the 
carrying  out  of  necessary  work,  and  the  payment  of  necessary  costs  and 
expenses  to  supply  water  to  the  landowners  of  said  district  for  irrigation 
purposes.  The  polls  will  be  opened  one  hour  after  sunrise  of  said  day 
and  will  close  at  sunset  of  said  day.  Dated  and  first  posted  February  2, 
19 10,  by  order  of  the  board  of  directors  of  the  Hood  River  Irrigation 
District.    R.  W.  Kelly,  Secretary,  Hood  River  Irrigation  District.' 

"(7)  That  said  election  was  held  as  by  law  required,  and  that  at  said 
election  there  were  a  total  of  forty-eight  (48)  votes  cast,  forty-six  (46) 
of  which  were  'bonds  yes'  and  two  (2)  of  which  said  votes  were  'bonds 
no,'  so  that  there  were  forty-six  (46)  votes  in  favor  of  bonds  and  two 
(2)  votes  against  bonds. 


Pioneer  Irrigation  Dist.  v.  Oregon  Short 
Line,  p.  43,  vol.  1,  this  series. 

As  to  irrigation  districts  in  general, 
their  formation,  powers,  duties,  liabili- 
ties, etc.,  see  note  to  Pioneer  Irrigation 
Dist.    v.    Short   Line,    p.    2,    vol.    1,    this 


As  to  irrigation  districts  being  public 
municipal  corporations,  see  part  I,  par. 
H,  note  to  Pioneer  Irrigation  Dist.  v. 
Oregon  Short  Line,  p.  14,  vol.  1,  this 
series. 


154  Water  and  Mineral  Cases.  [Oregon 

"(8)  That  on  the  28th  day  of  February,  in  the  year  19 10,  the  said 
board  of  directors  met  for  the  purpose  of  canvassing  the  returns  of  said 
election,  and  said  board  found  that  said  election  was  duly  and  regularly 
had  and  held,  and  that  there  were  a  total  of  forty-eight  votes  cast  at 
the  election,  forty-six  for  bonds  and  two  against  bonds,  and  the  result 
of  said  election  was  declared  and  entered  of  record. 

"(9)  That  all  the  matters  above  set  forth  were  declared  of  record  by 
said  board  in  its  minutes. 

"(10)  That  said  board  are  now  proceeding  to  and  threaten  to,  and 
will,  unless  restrained  by  this  honorable  court,  sell  the  bonds  of  said  dis- 
trict under  and  by  virtue  of  the  authority  attempted  to  be  vested  in 
them  by  said  election  of  February  26,  1910. 

"(11)  That  said  bond  issue  is  null  and  void,  as  said  district  possesses 
no  authority  by  law  or  statute  to  issue  or  sell  said  bonds  for  the  reason 
that  it  having  already  sold  its  first  bond  issue  above  mentioned,  and  hav- 
ing exhausted  the  proceeds  of  the  same,  there  is  no  statute  authorizing 
any  further  bond  issue  or  sale. 

"(12)  That  plaintiff  has  no  speedy,  adequate  or  sufficient  relief  at 
law,  and  unless  the  court  interfere  and  enjoin  the  said  defendants  from 
selling  said  bonds,  the  said  plaintiff  will  be  greatly  and  irreparably  dam- 
aged, and  the  said  bond  issue  and  said  bonds  will  be  a  cloud  upon  plain- 
tiff's title  to  said  real  property. 

"Wherefore  plaintiff  prays  for  a  decree  of  court  annulling  and  cancel- 
ing said  bond  issue,  and  plaintiff  further  prays  that  during  the  pen- 
dency of  this  suit  the  said  irrigation  district,  its  officers  and  agents,  be 
enjoined  and  restrained  from  selling  said  bonds  and  from  taking  any 
further  proceedings  in  the  matter  of  the  sale  and  issuance  of  said  bonds, 
and  plaintiff  prays  for  such  other  and  further  relief  as  to  the  court  may 
seem  just  and  equitable." 

To  this  complaint  a  demurrer  was  interposed  on  the  grounds  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  suit;  and  from  a 
judgment  sustaining  the  demurrer  and  dismissing  the  suit  plaintiff  ap- 
peals. 

For  appellant — A.  J.  Derby. 

For  respondent — Bennett  &  Sinnott. 

KTNG,  J.  (after  stating  the  facts).  The  sole  question  presented  by 
this  appeal  is  whether,  under  B.  &  C.  Comp.,  §  4714,  as  amended  by 
chapter  219  of  the  General  Laws  of  1909,  defendant  is  authorized  after 
having  exhausted  the  funds  received  from  a  sale  of  bonds  issued  under 
the  section  prior  to  the  amendment,  to  make  and  sell  an  additional  bond 


1910]  Hall  v.  Hood  Eiveb  Irrigation  District.  155 

issue.  The  plaintiff  insists  that  this  right  is  excluded  by  the  amendment, 
while  counsel  for  defendant  maintains  that  this  authority  is  clearly  im- 
plied in  the  law  as  amended.  Section  4714  of  the  Code,  prior  to  amend- 
ment, so  far  as  it  bears  upon  this  question,  provided :  "For  the  purpose 
of  constructing  necessary  irrigating  canals  and  works,  and  acquiring  the 
necessary  property  and  rights  therefor,  and  otherwise  carrying  out  the 
provisions  of  this  act,  the  board  of  directors  of  any  such  district  must, 
as  soon  after  such  district  has  been  organized  as  may  be  practicable,  and 
whenever  thereafter  the  construction  fund  has  been  exhausted  by  ex- 
penditures herein  authorized  therefrom,  and  the  board  deem  it  necessary 
or  expedient  to  raise  additional  money  for  said  purposes,  estimate  and 
determine  the  amount  of  money  necessary  to  be  raised,  and  shall  imme- 
diately thereafter  call  a  special  election,  at  which  shall  be  submitted  to 
the  electors  of  such  district  possessing  the  qualifications  prescribed  by 
this  act,  the  question  whether  or  not  the  bonds  of  said  district  in  the 
amount  as  determined  shall  be  issued.  *  *  *  "  The  section  as  amend- 
ed reads:  "For  the  purpose  of  procuring  necessary  reclamation  works, 
and  acquring  the  necessary  property  and  rights  therefor  and  otherwise 
carrying  out  the  provisions  of  this  act,  the  board  of  directors  of  any 
such  district  shall,  as  soon  as  practicable  after  the  organization  of  such 
district,  by  a  resolution  entered  on  its  record,  formulate  a  general  plan 
of  its  proposed  (works)  in  which  it  shall  state  in  a  general  way  what 
works  or  property  it  proposes  to  purchase  or  acquire,  and  what  work  it 
proposes  to  construct,  and  the  estimated  cost  of  carrying  out  said  plan, 
and  how  it  proposes  to  raise  the  necessary  funds  therefor.  *  *  * 
After  specifying  the  manner  in  which  the  bonds  shall  be  issued,  etc.,  the 
amended  section  continues :  "In  case  the  money  raised  by  the  sale  of  all 
the  bonds  be  insufficient  for  the  completion  of  the  plans  and  works 
adopted,  and  additional  bonds  be  not  voted,  it  shall  be  the  duty  of  the 
board  to  provide  for  the  completion  of  said  plan  by  levy  of  assessments 
therefor,  in  the  manner  herein  provided." 

It  is  settled  law  that  municipalities  cannot  issue  bonds  unless  the  au- 
thority to  do  so  is  expressly  given  or  clearly  implied.  28  Cyc.  1575. 
Taking  into  consideration  the  italicized  expressions  in  the  above  ex- 
cerpts, "and  otherwise  carrying  out  the  provisions  of  this  act,"  "what 
work  it  proposes  to  construct,"  "additional  bonds,"  etc.,  we  think  it  mani- 
fest that  the  defendant  has  brought  itself  within  this  rule.  More  es- 
pecially does  it  appear  that  this  authority  is  implied  when  the  phrases 
quoted,  together  with  the  general  object  to  be  obtained  by  the  entire  act, 
is  examined  in  connection  with  a  further  statement  in  the  amended  sec- 
tion, to  the  effect  that,  after  the  first  bond  issue  provided  "for  the  pur- 
pose  of   procuring   necessary    reclamation    works  *  *  *  and    otherwise 


156  Water  and  Mineral  Cases.  [Oregon 

carrying  out  the  provisions  of  this  act  *  *  *  "  shall  have  been  authorized 
at  an  election  there  specified,  the  board  "thereafter"  may  "whenever 
*  *  *  in  its  judgment"  it  is  deemed  "for  the  best  interest  of  the  district 
that  the  question  of  the  issuance  of  bonds  in  said  amount,  or  any  amount, 
shall  be  submitted  to  said  electors,  it  shall  so  declare  of  record  in  its 
minutes,  and  may  thereupon  submit  such  questions  to  said  electors  in 
the  same  manner  and  with  like  effect  as  at  such  previous  election."  To 
hold  otherwise  would,  for  obvious  reasons,  in  many  instances  defeat  the 
very  purpose  for  which  the  law  was  enacted.  We  are  of  the  opinion 
that  the  issue  complained  of  is  authorized  bv  the  act  as  amended. 
The  judgment  is  affirmed. 


1910] 


Geay  v.  New  Mexico  Pumice  Stone  Co. 


157 


GRAY  v.  NEW  MEXICO  PUMICE  STONE  CO. 

[Supreme  Court  of  New  Mexico,  August  16,  1910.] 

—  N.  M.  — ,  110  Pac.  603. 

1.  Mining   Claim — Mechanics'   Liens — Statement  of   Lien. 

Under  Sec.  2221  of  the  Compiled  Laws  of  1897,  providing  that  every  person 
claiming  a  mechanic's  lien  must  file  for  record  with  the  county  recorder  of  the  county 
in  which  the  property  is  situated  a  claim  containing  a  statement  of  his  demands, 
etc.,  with  a  statement  of  the  terms,  time  given,  and  conditions  of  his  contract, 
it  is  sufficient  as  against  a  demurrer  to  state  that  claimant  agreed  with  the 
owner  of  the  property  to  work  for  it  for  the  sum  of  three  dollars  a  day  and  board. 

2.  Same — Statement  of  Character  of  Labor. 

Statement  in  the  claim  of  lien  that  it  is  for  labor  performed  by  the  lien  claimant 
in  the  construction  of  the  mining  claim  on  the  land,  is  sufficient. 

3.  Same — Original  Contractor. 

Every  person  who  deals  directly  with  the  owner  of  the  property  and  who  in 
pursuance  of  a  contract  with  him  performs  labor  or  furnishes  material,  is  an 
original  contractor  within  the  meaning  of  the  statute. 

4.  Same — Pleading — Demurrer. 

A  separate  demurrer  by  a  subsequent  incumbrancer  directly  raises  the  question 
whether  the  complaint  and  claim  of  lien  states  facts  sufficient  to  constitute  a  cause 
of  action  against  the  defendant  demurring. 

5.  Same — Constitutional    Law — Attorneys'    Fees, 

The  statute  allowing  attorneys'  fees  upon  foreclosure  of  mechanic's  lien  is 
constitutional. 


CASE    NOTE. 

Services  for  Which   Mechanics'  Liens 
Are  Allowed   on    Mining   Claims. 


I. 

In  General,  158. 

II. 

Law  Not  Retroactive,  158. 

III. 

As  Superintendent  or 
Manager,  158. 

IV. 

As  Geologist  and  Expert, 
160. 

V. 

As  Amalgamator,  160. 

VI. 

As  Bookkeeper,  Cashier 
or  Clerk,  160. 

VII. 

As  Foreman,  161. 

VIII. 

As  Watchman  or  Care- 
taker, 161. 

IX. 

In  Extracting  Ore,  etc., 
162. 

X. 

In  Sinking  Shaft,  162. 

XI. 

In  Cleaning  and  Washing 
Gold,  162. 

XII. 

In  Torpedoing  Well,  163. 

XIII.  In  Working  on  Machinery 

or  Tools,  163. 

XIV.  General     Labor     in     Lime 

Kiln,  163. 
XV.     In  Cooking  for  Men,  163. 
XVI.     In    Furnishing     Laborers, 

164. 
XVII.     Under  Contracts,  164. 
XVIII.     In  Building  Elevator,  164. 
XIX.     In  Building  Roads,  164. 
XX.     In  Hauling  Quartz,  165. 
XXI.     In  Caring  for  Teams,  165. 
XXII.     Incidental  Labor,  166. 

XXIII.  Work     Done    Away     from 

Mine,  166. 

XXIV.  In  Prospecting,  166. 
XXV.     At  Request  of  One  Other 

Than  Owner,  166. 
XXVI.     Apportionment  of  Lien,  167. 
XXVII.    Lien  Void  in  Part  Void  in 

Toto,  168. 


158 


Water  and  Mineral  Cases.        [New  Mexico 


6.  Same — Character  of  Labor. 

Labor  in  working  in  a  quarry  <is  a  laborer,  working  as  foreman  with  other 
laborers,  directing  tliem  in  their  work,  working  at  lime-kiln,  gathering  up 
tools,  closing  lime  bins,  and  caring  for  team  of  horses,  is  all  within  the  statute 
allowing   mechanic's   hen. 

7.  Same — "Mining   Claim,"    Meaning    of  Term. 

The  words  "mining  claim"  in  the  mining  country  have  a  certain  well-understood 
meaning,  viz.,  a  portion  of  the  public  mineral  lands  of  the  United  States  to  which 
qualified  persons  may  first  obtain  the  right  of  occupancy  and  possession  by  means 
of  location  and  secondly  may  obtain  title  by  pursuing  certain  prescribed  'methods 
therefor. 

Action  to  foreclose  mechanic's  lien.     Decree  for  plaintiff.     Affirmed. 
For  appellant — Herbert  F.  Raynolds. 
For  appellee — Felix  H.  Lester. 

PARKER,  J.  i.  Objection  is  made  to  the  claim  of  lien  on  the  ground 
that  it  fails  to  state  the  terms,  time  given,  and  condition  of  the  contract 
under  which  the  labor  was  performed,  as  is  required  by  section  2221  of 
the  Compiled  Laws  of  1897,  which  is  as  follows :  "Every  original  con- 
tractor, within  ninety  days  after  the  completion  of  his  contract,  and 
every  person,  save  the  original  contractor,  claiming  the  benefit  of  the 
act,  must  within    sixty    days    after    the    completion    of    any    building, 


I.      In    General. 

The  original  idea  underlying  mechan- 
ic's lien  statutes  was  that  where  the  per- 
son contributed  his  labor  or  materials  to 
the  construction  of  a  building  or  im- 
provement the  owner  ought  in  equity  and 
good  conscience  be  made  to  pay  for  the 
increased  value  of  the  property  by  reason 
of  the  labor  or  materials  of  the  lien 
claimant;  but  in  mining  it  cannot  be 
said  that  the  labor  of  a  man  adds  to 
the  value  of  the  mine.  On  the  other 
hand  it  necessarily,  except  in  strictly 
prospecting  and  development  work,  de- 
tracts from  the  value  of  the  mine  by  re- 
moving therefrom  its  ores  which,  when 
exhausted,  leaves  the  mine  valueless.  It 
may  well  be  argued,  therefore,  that  the 
statutes  extending  liens  to  laborers  on 
mining  claims  were  intended  to  include 
all  laborers  of  every  class  and  kind  who 
may  be  employed  in  and  about  the  min- 
ing operations  thereon.  Gray  v.  New 
Mexico  Pumice  Stone  Co.,  principal  case. 


Where  the  specific  relation  which  the 
labor  of  a  lien  claimant  must  bear  to  the 
property  is  pointed  out  in  a  statute,  no 
other  labor  furnishes  the  basis  of  a  claim 
of  lien,  but  where  the  statute  is  general 
in  terms  and  provides  for  a  lien  of  any 
person  who  performs  labor  upon  or  in  a 
mining  claim,  labor  of  any  class  bearing 
a  direct  relation  to  the  mining  opera- 
tions is  sufficient  to  form  a  basis  for  a 
claim  of  lien.  Gray  v.  New  Mexico 
Pumice  Stone  Co.,  principal  case. 

II.  Law  Not  Retroactive, 
The  law  giving  a  miner  a  lien  for  his 
labor  is  not  retroactive,  and  therefore 
no  lien  attaches  to  the  property  for  labor 
performed  prior  to  the  passage  of  the 
law.  Hunter  v.  Savage  Consol.  Silver 
Min.  Co.,  4  Nev.  153,  9  Mor.  Min.  R. 
357  (1868). 

III.      As  Superintendent  or  Manager. 

The    superintendent    of    a    mine    who 

does  manual  labor  therein  is  entitled  to 


1910] 


Gray  v.  New  Mexico  Pumice  Stone  Co. 


159 


improvement,  or  structure,  or  after  the  completion  of  the  alteration  or 
repair  thereof,  or  the  performance  of  any  labor  in  a  mining  claim,  file 
for  record  with  the  county  recorder  of  the  county  in  which  such  prop- 
erty or  some  part  thereof  is  situated,  a  claim  containing  a  statement 
of  his  demands,  after  deducting  all  just  credit  and  offset,  with  the  name 
of  the  owner  or  reputed  owner,  if  known,  and  also  the  name  of  the  person 
by  whom  he  was  employed,  or  to  whom  he  furnished  the  materials,  with 
a  statement  of  the  terms,  time  given,  and  conditions  of  his  contract,  and 
also  a  description  of  the  property  to  be  charged  with  the  lien,  sufficient 
for  identification,  which  claim  must  be  verified  by  the  oath  of  himself 
or  some  other  person."  The  terms  of  the  claim  of  lien  are  as  follows: 
"Claimant  agreed  to  and  with  the  New  Mexico  Pumice  Stone  &  Litho- 
graph Company  to  work  for  said  company  for  the  sum  of  $3  per  day 
and  board."  This  is  certainly  a  very  meager  statement,  but  can  it  be 
said  that  it  is  so  insufficient  as  to  invalidate  the  lien?     If  the  terms  and 


a  mechanic's  lien  the  same  as  any  other 
laborer.  Palmer  v.  Uncas  Mining  Co., 
70  Cal.  614,  11  Pac.  666   (1886). 

The  services  of  a  superintendent  in 
planning  and  superintending  development 
work  upon  a  mine,  and  in  planning  and 
supervising  the  erection  of  a  mill  and 
machinery,  are  the  subject  of  a  lien. 
Rara  Avis  Gold  &  S.  Min.  Co.  v.  Bous- 
cher,  9  Colo.  385,  12  Pac.  433    (1886). 

One  employed  as  the  superintendent  of 
a  mining  company,  having  general  super- 
vision and  charge  of  the  mines  and 
works,  and  employed  at  a  monthly  sal- 
ary, contributes  only  in  an  indirect  man- 
ner to  the  improvement  of  the  property, 
and  is  not  entitled  to  a  mechanic's  lien. 
He  stands  very  much  in  the  situation  of 
an  owner  directing  and  managing  works 
of  his  own.  He  is  the  representative  of 
the  corporation,  and  to  the  laborers 
under  him  he  is  the  corporation  at  the 
place  where  the  labor  is  performed. 
Smallhouse  v.  Kentucky  &  Montana  Gold 
&  S.  Min  Co.,  2  Mont.  443,  9  Mor.  Min. 
R.    388    (1876). 

Under  New  Mexico  Compiled  Laws, 
sec.  1520,  providing  for  a  lien  in  favor 
of  one  who  performs  labor  in  any  mining 
claim,  a  general  manager  and  superin- 
tendent who  does  no  manual  labor  is  not 


entitled  to  a  lien.  Boyle  v.  Mountain 
Key  Min.  Co.,  9  N.  M.  237,  50  Pac.  347 
(1897). 

Under  the  Oregon  statute  "every  per- 
son    who     shall     perform     labor     upon 

*  *     *     any  mine,  lode,  mining  claim 

*  *  *  shall  have  a  lien,"  etc.  A  super- 
intendent and  general  manager  of  a 
mine  cannot  be  held  to  be  a  person 
performing  labor  upon  the  mine  within 
the  meaning  and  intent  of  the  statute. 
The  phrase  "every  person  who  shall  per- 
form labor"  is  used  to  designate  ordinary 
laborers  who  perform  actual  physical 
toil,  common  laborers  and  those  who 
are  required  to  use  their  hands  or 
muscles  in  actual  work,  and  does  not 
include  that  higher  and  usually  better- 
paid  class  of  employees  whose  duties  are 
confined  to  superintendence  and  manage- 
ment, unless  such  class  is  expressly  men- 
tioned in  the  statute.  Durkheimer  v. 
Copperopolis  Copper  Co.  (Or.),  104  Pac. 
895    (1909). 

Under  section  1221  of  the  Compiled 
Laws  of  Utah,  providing  that  any  "per- 
son or  persons  who  shall  perform  any 
work  or  labor  upon  any  mine  »  *  * 
shall  be  entitled  to  a  miner's  lien  for  the 
payment  thereof,"  etc.,  one  employed  as 
a  superintendent  to  direct  the  work  in 


1G0 


Water  and  Mineral  Cases.        [New  Mexico 


conditions  of  the  contract,  as  stated,  were  the  only  terms  and  condi- 
tions agreed  upon,  none  others  could  be  stated.  If  no  time  was  given, 
then  no  statement  could  be  made  on  the  subject.  There  is  nothing  in 
this  record  to  show  that  there  were  in  fact  any  other  terms  or  condi- 
tions in  the  contract  of  employment  than  those  expressed.  Under  such 
circumstances,  the  claim  of  lien  is  clearly  not  open  to  attack  by  demur- 
rer. We  therefore  hold  that  the  claim  of  lien  is  sufficient  on  its  face  in 
this  particular. 

2.  The  lien  claim  is  challenged  on  the  ground  that  it  fails  to  show  the 
character  of  the  labor  for  which  it  is  asserted.  This  requirement  in  so 
far  as  it  exists  arises  out  of  the  provision  of  the  statute  heretofore 
quoted,  to  the  effect  that  the  claim  of  lien  shall  contain  "A  statement  of 
his  demands."  In  some  jurisdictions,  as  for  instance  in  Washington, 
this  provision  has  been  quite  strictly  construed,  and  it  is  there  held  that 
it  must  appear  what  the  labor  or  materials  were  for  which  the  claim 


the  mine,  with  authority  to  employ  and 
discharge  miners  and  procure  and  pur- 
chase supplies  for  working  the  mine,  and 
whose  duty  it  was  to  plan,  oversee,  and 
direct  the  work  of  the  mine,  direct  the 
shipping  of  ore  and  generally  control  and 
direct  the  actual  working  and  develop- 
ment of  the  mine,  comes  within  the 
letter  and  spirit  of  the  law,  and  is  as 
much  entitled  to  a  lien  for  his  services 
as  any  other  laborer.  Cullins  v.  The 
Flagstaff  Silver  Min.  Co.,  2  Utah  219,  9 
Mor.  Min.  R.  412  (1877),  affirmed  104 
U.  S.  176,  26  L.  Ed.  704   (1880). 

Street-car  tickets  and  meals  of  super- 
intendent under  contract  for  erecting 
and  fitting  out  an  amusement  park  were 
held  to  be  not  subject  to  mechanic's  lien. 
Hass  Electric  &  Mfg.  Co.  v.  Springfield 
Amusement  Park  Co.,  236  111.  452,  86  N. 
E.  248,  127  Am.  St.  Rep.  297   (1908). 

IV.      As    Geologist    and     Expert. 

Under  the  statute  providing  for  me- 
chanics' liens  on  property  in  favor  of 
architects,  engineers,  and  artisans  ren- 
dering professional  services  thereon,  a 
geologist  and  mining  expert  who  ex- 
plored and  examined  certain  mines  and 
the  surrounding  country  under  contract 
with    the    owner,    is    not    entitled    to    a 


mechanic's  lien  for  his  services.  Linde- 
mann  v.  Belden  Consol.  Min.  &  Mill.  Co., 
16  Colo.  App.  342,  05  Pac.  403   (1901). 

V.  As  Amalgamator. 
Where  a  person  performs  labor  in  a 
quartz  mill  located  upon  and  belonging 
to  a  mine  under  employment  by  the 
owners,  and  such  labor  consists  in  work- 
ing "as  an  amalgamator,  attending  to 
putting  silver  into  batteries,  dressing 
plates,  keeping  the  machinery  in  running 
order,  looking  after  the  concentrates,  ad- 
justing them,  and  putting  them  in  shape 
to  run,  cleaning  amalgam,  looking  after 
the  rock-breaker,  and  generally  looking 
after  the  entire  machinery,"  he  is  entitled 
to  a  lien  on  the  mine  for  such  labor 
under  the  Lien  Laws  of  Idaho.  Thomp- 
son v.  Wiseboy  Min.  &  Mill.  Co.,  9  Idaho 
363,  74  Pac.  958  (1903). 

VI.      As   Bookkeeper,   Cashier  or 
Clerk. 

The  keeping  of  books  and  the  disburse- 
ment of  funds,  while  matters  '  of  great 
importance,  are  not  subject  of  mechanics' 
liens.  Rara  Avis  Gold  &  S.  Min  Co.  v. 
Eouscher,  9  Colo.  385,  12  Pac.  433 
(1886). 

Shipping  clerk  on  wharf  where  coal  is 
shipped  held  entitled  to  a  lien  for  hia 


1910] 


Gray  v.  New  Mexico  Pumice  Stone  Co. 


161 


is  asserted.  See  Warren  v.  Quade,  3  Wash.  St.  750,  29  Pac.  827.  In 
other  jurisdictions  it  is  held,  more  properly  as  we  believe,  that  a  state- 
ment of  the  general  nature  of  the  materials  furnished,  or  labor  performed, 
together  with  the  amount  claimed  to  be  due  therefor,  after  deducting 
all  just  credits  and  offsets,  is  all  that  is  required.  Jewell  v.  McKay,  82 
Cal.  150,  23  Pac.  139;  McCain  v.  Hutton,  131  Cal.  133,  61  Pac.  273,  63 
Pac.  182,  622;  Maynard  v.  Ivey,  21  Nev.  241,  29  Pac.  1090.  In  the  case 
under  consideration  the  specific  character  of  the  labor  performed  by 
the  lien  claimant  is  not  stated  further  than  to  say  that  it  was  labor  per- 
formed in  the  construction  of  the  mining  claim  on  the  land.  This  seems 
to  be  sufficiently  definite  and  may  include  many  different  kinds  of  labor, 
for  all  of  which  a  claimant  would  be  entitled  to  a  lien. 

3.  Objection  is  made  to  the  claim  of  lien  upon  the  ground  that  it 
was  not  filed  for  record  in  time.  The  objection  is  based  upon  the  proposi- 
tion that  the  lien  claimant  is  not  an  original  contractor  within  the  mean- 


services.     Appeal  of  Farmers'    Bank  of 

Schuylkill  Co.,  1  Walk.   (Pa.)  33   (1862). 

VII.      As    Foreman. 

The  foreman  of  a  mine  is  entitled  to 
a  mechanic's  lien  where  he  assists  in 
the  general  work  of  the  mine,  such  as 
the  framing  of  timbers,  the  erection  of 
a  mill,  helping  the  men  generally,  as  well 
as  seeing  that  the  work  of  mining  is 
properly  done.  Washburn  v.  Inter 
Mountain  Min.  Co.  (Or.),  109  Pac. 
382    (1910). 

Under  the  statute  providing  that  every 
person  performing  labor  upon  or  fur- 
nishing materials  to  be  used  in  the  con- 
struction, alteration  or  repair  of  any 
mining  claim,  etc.,  has  a  lien  upon  the 
same  for  the  work  or  labor  done  or  ma- 
terials furnished,  one  employed  during 
part  of  the  time  as  a  foreman  and  part 
of  the  time  as  a  watchman  is  not  enti- 
tled to  a  lien,  such  services  not  being  of 
the  character  contemplated  by  the  law. 
Idaho  Min.  &  Mill.  Co.  v.  Davis,  123 
Fed.   390,  59  C.  C.  A.  200    (1903). 

One  whose  duties  are  to  act  as  general 
foreman,  to  "boss''  the  men  who  are 
at  work  in  the  mine,  keep  their  time,  and 
give  them  orders  for  their  pay,  is  en- 
titled to  a  mechanic's  lien.  Capron  v. 
Strout,  11  Nev.  30-4  (1878). 
W.   &   M— 11 


VIII.      As  Watchman  or  Caretaker. 

The  services  of  a  watchman  in  caring 
for  a  mine  while  it  is  lying  idle  does 
not  entitle  him  to  a  mechanic's  lien.  The 
labor  contemplated  by  the  statute  is  the 
actual  work  of  mining  in  development 
of  a  mining  claim.  William  v.  Hawley, 
144  Cal.  97,  77  Pac.  702    (1904). 

Where  one  is  employed  at  an  oil  well 
part  of  the  time  as  a  watchman  and  part 
of  the  time  engaged  in  the  pumping  of 
oil,  he  is  entitled  to  a  mechanic's  lien 
for  that  portion  of  his  work  consisting 
of  the  pumping  of  oil,  but  not  for  that 
as  a  watchman.  Danaldson  v.  Orchard 
Crude  Oil  Co.  6  Cal.  App.  641,  92  Pac. 
1046    (1907). 

By  the  provisions  of  section  3445  of 
the  Idaho  Revised  Statutes  of  1887,  a 
party  placed  in  charge  of  mining  prop- 
erty consisting  of  both  real  and  personal 
property  has  a  lien  on  the  personal 
property  while  in  possession  thereof. 
Idaho  Comstock  Min.  &  Mill.  Co.  v. 
Lundstrum,  9  Idaho  257,  74  Pac.  979 
(1903). 

Under  a  statute  providing  that  every 
"person  who  shall  furnish  or  perform  any 
labor  for  any  corporation  organized  for 
the  purpose  of  mining,  *  *  *  shall 
have  a  lien  for  the  amount  due,"  etc.,  a 


162 


Water  and  Mineral  Cases.        [New  Mexico 


ing  of  the  section  above  quoted.  There  has  been  much  diversity  of 
opinion  and  confusion  as  to  the  meaning  of  these  words  in  a  statute 
like  ours,  but  we  think  that  the  Idaho  court,  under  a  statute  identical 
in  terms  with  ours,  has  announced  the  true  rule,  namely,  that  every 
person  who  deals  directly  with  the  owner  of  the  property  and  who,  in 
pursuance  of  a  contract  with  him,  performs  labor  or  furnishes  material, 
is  an  original  contractor  within  the  meaning  of  the  statute.  Colorado 
Iron  Works  v.  Riekenberg,  4  Idaho,  262,  38  Pac.  651.  The  same  holding 
prevails  in  Texas,  Missouri,  Virginia,  and  Wisconsin,  and  the  cases  from 
those  states  are  cited  in  the  Idaho  opinion.  We  therefore  hold  that  the 
claim  of  lien  in  this  case  was  filed  in  time. 

4.  It  is  urged  by  appellee  that  the  objections  to  the  claim  of  lien 
heretofore  discussed  are  not  available  to  the  appellant  for  the  reason 
that  his  demurrer,  being  general,  and,  the  complaint  stating  a  cause  of 
action  against  the  owner  of  the  property  for  money  due,  the  demurrer 


lien  may  be  claimed  for  services  as  over- 
seer and  custodian  of  a  mine  and  prop- 
erty. The  statute  does  not  restrict  the 
labor  to  any  particular  class  of  labor- 
ers or  kind  of  labor  performed.  It 
only  requires  that  it  shall  be  labor  fur- 
nished or  performed  for  the  corporation. 
McLaren  v.  Byrnes,  80  Mich.  275,  45  N. 
W.    143    (1890). 

A  mechanic's  lien  will  not  be  allowed 
for  services  in  looking  after  mining 
property,  paying  the  taxes  thereon,  list- 
ing it  and  keeping  trespassers  from  enter- 
ing and  working  the  mines.  Morrison 
v.  New  Haven  &  Wilkerson  Min.  Co., 
143  N.  C.   251,  55   S.   E.   611    (1906). 

IX.      In    Extracting    Ore,    etc. 

A  mine  or  pit  sunk  within  a  mining 
claim  is  a  structure  within  the  mean- 
ing of  the  statute  giving  a  mechanic's 
lien  for  any  labor  performed  upon  a 
building,  improvement,  or  structure,  and 
therefore  the  lien  may  be  claimed  for 
labor  in  quarrying  and  extracting  quartz 
and  working  the  stopes  and  levels  for  the 
purpose  of  taking  out  rock  to  be  crush- 
ed. Helm  v.  Chapman,  66  Cal.  291,  5 
Pac.  352  (1885). 

The  breaking  down  and  tearing  away 
from  the  surface  of  the  drifts  and  mine 


the  quartz  and  substance  of  the  mine,  is 
labor  performed  in  the  construction  and 
alteration  or  repair  of  the  mine,  within 
the  provisions  of  sections  1183-1192  of 
the  Code  of  Civil  Procedure.  Chappius 
v.  Blankman,  128  Cal.  362,  60  Pac.  925, 
20  Mor.  Min.  R.  461    (1900). 

The  labor  performed  in  mining  coal 
in  the  regular  course  of  operating  a 
mine  is  not  performed  in  the  making  of 
any  improvement  within  the  meaning  of 
the  Illinois  Mechanic's  Lien  Act.  Henry 
v.  Miller,   145  111.  App.  628    (1908). 

Men  working  on  the  surface  of  a  mine 
are  entitled  to  a  lien  equally  with  those 
working  underground.  Taylor  v.  Smith, 
1  Ches.   Co.  Rep.    (Pa.)    106    (1896). 

X.  In  Sinking  Shaft. 
One  who  engages  as  a  miner  in  sink- 
ing a  shaft  upon  a  mining  claim  is  en- 
gaged in  mining  equally  with  one  who 
extracts  the  gravel  or  ore  therefrom,  and 
is  equally  entitled  to  a  lien  for  his  ser- 
vices. Hines  v.  Miller,  122  Cal.  517,  55 
Pac.  401,  19  Mor.  Min.  R.  609   (1898). 

XI.      In  Cleaning  and  Washing  Gold. 

Time  and  labor  devoted  to  cleaning  up 
and  washing  gold  taken  out  of  a  mine  is 
labor  done  upon  the  mine.  Cascaden  v. 
Wimbish,  161  Fed.  241   (1908). 


1910] 


Gray  v.  New  Mexico  Pumice  Stone  Co. 


163 


was,  at  any  event,  properly  overruled,  and  consequently  these  objections 
to  the  claim  of  lien  were  never  properly  presented  to  the  court  below. 
In  this  he  is  in  error.  This  was  a  separate  demurrer  by  a  subsequent 
incumbrancer.  Had  the  demurrer  been  joint  with  the  owner,  perhaps 
his  proposition  would  be  sound,  but,  being  a  separate  demurrer,  it  di- 
rectly raises  the  question  whether  the  complaint  and  claim  of  lien  stated 
facts  sufficient  to  constitute  a  cause  of  action  against  the  defendant  de- 
murring.    Mark  Paine  Lumber  Co.  v.  Douglas  Imp.  Co.,  94  Wis.  322, 

68  N.  W.  1013. 

5.  Appellant  in  his  sixth  assignment  complains  of  the  allowance  by 
the  court  below  of  an  attorney's  fee  to  the  appellee,  and  urges  upon  the 
court  a  reconsideration  of  the  constitutionality  of  the  lien  statute  under 
which  the  same  was  allowed.  We  do  not,  however,  deem  it  necessary 
to  re-examine  the  question,  this  court  having  settled  it  in  favor  of  the  con- 
stitutionality of  the  statute  in  the  cases  of  Genest  v.  Las  Vegas  Masonic 


XII.  In  Torpedoing  Well. 
Under  chapter  410,  New  York  Laws 
1880,  providing  that  any  person  who 
shall  hereafter  perform  any  labor  in  or 
about  the  sinking,  drilling,  or  complet- 
ing of  any  oil  well  or  any  well  sunk 
or  drilled  for  oil  or  gas,  etc.,  shall  have 
a  lien,  a  lien  may  be  claimed  for  tor- 
pedoing an  oil  well.  Gallagher  v.  Karns, 
27  Hun     (N.  Y.)    375    (1882). 

XIII.  In   Working   on    Machinery  op 

Tools. 
Work  done  upon  machinery  or  tools 
used  in  working  or  developing  a  mine 
is  work  done  upon  a  mine,  the  Civil  Code 
of  California,  section  661,  providing  that 
all  machinery  or  tools  used  in  working  or 
developing  a  mine  are  to  be  deemed  af- 
fixed to  the  mine.  Malone  v.  Big  Flat 
Gravel  Co.,  76  Cal.  578,  18  Pac.  772 
(1888). 

XIV.  General    Labor    in    Lime-Kiln. 
Under  the  New  Mexico  Act,  providing 

that  "all  miners,  laborers  and  others  who 
work  or  labor  to  the  amount  of  twenty- 
five  dollars  or  more  in  or  upon  any  mine, 
lode  or  deposit  *  *  *  shall  have  and  may 
each  respectively  claim  and  hold  a  lien, 
and    that    all    artisans,    mechanics    and 


others  who  perform  work  or  labor  *  *  * 
for  the  construction  or  repair  of  any 
building  or  other  superstructure  shall 
have  and  may  claim  and  hold  a  lien," 
labor  performed  in  a  lime-kiln,  closing 
lime  bins  and  gathering  up  tools  at  a 
lime  quarry  and  lime-kiln,  all  on  the 
mining  claim,  furnish  a  basis  for  a  claim 
of  lien  upon  the  mining  claim.  Gray  v. 
New  Mexico  Pumice  Stone  Co.,  principal 
case. 

XV.  In  Cooking  for  Men. 
Under  section  262  of  the  Civil  Code 
of  Alaska,  providing  that  "every  mechan- 
ic, artisan,  machinist,  builder,  contractor, 
lumber  merchant,  laborer,  teamster, 
drayman  and  other  person  performing 
labor  upon  or  furnishing  material  of 
any  kind  to  be  used  in  the  construction, 
development,  alteration  or  repair  either 
in  whole  or  in  part  of  any  *  *  *  mine 
*  *  *  shall  have  a  lien  upon  the  same 
for  the  work  or  labor  done  or  material 
furnished,"  etc.,  where  a  number  of  men 
were  hired  at  five  dollars  per  day  and 
board,  and  one  of  them  devoted  a  portion 
of  his  time  to  cooking  for  himself  and 
the  others  and  the  remainder  of  his 
time  working  on  the  shafts  and  tunnels, 
it  was   held   he   was   entitled  to  a   lien 


164 


Water  and  Mineral  Cases.        [New  Mexico 


Building  Association,  n  N.  M.  251,  67  Pac.  743,  and  Baldridge  v. 
Morgan  (N.  M.),  106  Pac.  342.  See  Cascaden  v.  Wimbish,  161  Fed. 
241,  88  C.  C.  A.  277. 

6.  The  appellant  contends  that  the  claim  of  lien  was  for  work  per- 
formed by  appellee  of  a  character  in  part  which  furnished  no  basis  for 
a  claim  of  lien,  and  this  raises  the  only  question  in  the  case  requiring 
much  consideration.  As  already  appears,  the  labor  performed  by  ap- 
pellee was  in  working  in  a  lime  quarry  as  a  laborer,  working  as  a  sort 
of  foreman  with  other  laborers  and  directing  them  in  their  work,  work- 
ing at  the  lime  kiln,  gathering  up  tools,  closing  lime  bins,  and  caring 
for  teams  of  horses,  and  nowhere  does  it  appear  how  much  labor  was 
expended  by  him  in  these  several  capacities.  The  question  under  the 
circumstances  in  this  case  might  well  raise  two  points  for  consideration, 
namely :  Is  the  work  shown  to  have  been  performed  by  appellee  within 
the  terms  of  the  claim  of  lien?  Second.  Is  such  work  within  the  terms 
of  the  statute? 


for  his  full  time  equally  with  the  other 
laborers.  Cascaden  v.  Wimbish,  161 
Fed.  241    (1908). 

XVI.      In     Furnishing     Laborers. 

One  who  contracts  to  furnish  the 
labor  of  others  in  the  development  and 
working  of  a  mine  is  entitled  to  a 
mechanic's  lien  as  an  original  contractor. 
Malone  v.  Big  Flat  Gravel  Co.,  7G  Cal. 
578,  18  Pac.  772    (1888). 

XVII.      Under  Contracts. 

Where  work  is  done  by  miners,  some- 
times by  the  day  and  at  other  times 
under  small  contracts  to  do  a  certain 
amount  of  work  for  a  certain  price,  but 
all  under  the  direction  and  superin- 
tendence of  the  foreman  of  the  mine,  it 
constitutes  but  one  employment  and  the 
work  done  by  the  day  and  that  done 
under  the  contracts  may  be  included  in 
one  claim  of  lien.  Skyrme  v.  Occidental 
Min.  &  Mill.  Co.,  8  Nev.  219,  9  Mor. 
Min.  R.   370    (1870). 

A  mechanic's  lien  may  be  enforced 
for  work  done  and  materials  furnished 
by  one  who  contracted  to  drill  an  oil 
well  and  furnish  the  tools,  rope,  fuel, 
etc.,  to  be  used  in  the  drilling  under  the 


provisions  of  the  Pennsylvania  Act  of 
March  7,  1873,  section  2.  Vandergrift 
&  Forman's  Appeal,  83  Pa.  St.  126,  9 
Mor.  Min.  R.  397    (1876). 

XVIII.  In  Building  Elevator. 
Lien  may  be  claimed  for  an  elevator 
connected  with  main  shaft  and  nailed 
fast  to  the  framework  of  the  building,  as 
an  improvement  necessary  to  the  plant. 
Rogers  v.  C.  C.  C.  Min.  Co.,  75  Mo.  App. 
114     (1898). 

XIX.      In     Building     Roads. 

No  provision  is  made  in  the  Oregon 
Statute  for  constructing  wagon  roads, 
however  necessary  they  may  be  to  the 
successful  operation  of  a  mine.  When 
means  are  given  for  certain  specified 
work,  the  rule  of  Expressio  unius  est 
exclusio  alterius  applies,  and  hence  no 
lien  attaches  for  that  class  of  work. 
Williams  v.  Toledo  Coal  Co.,  25  Or.  426, 
36  Pac.  159,  42  Am.  St.  Rep.  799 
(1894). 

Under  the  Montana  Statute  giving  any 
person  performing  any  work  on  or  fur- 
nishing any  material  for  any  building, 
structure,  mining  claim,  etc.,  a  lien 
on  the  property  extends  to  any  character 


1910] 


Gkay  v.  New  Mexico  Pumice  Stone  Co. 


165 


The  first  point  might  be  a  very  serious  one  under  the  terms  of  the 
claim  of  lien,  which  declares,  "Said  lien  being  claimed  for  labor  and 
services  in  the  construction  of  the  mining  claim  on  said  land;"  but  the 
point  does  not  seem  to  be  raised  in  the  brief.  It  may  well  be  doubted 
whether  labor  in  a  lime  kiln  in  gathering  up  tools,  caring  for  teams 
of  horses,  or  closing  lime  bins  is  work  in  the  construction  of  a  mining 
claim,  if,  indeed,  the  word  "construction"  can  be  properly  used  in  con- 
nection with  work  upon  a  mine.  However,  the  draftsman  of  a  claim 
of  lien  evidently  intended  by  the  use  of  the  word  to  confine  the  scope 
of  the  lien  to  such  labor  as  was  actually  performed  in  the  mining  of 
lime  rock,  and  there  is  a  variance  between  the  proof  and  the  allegation 
in  this  regard.     At  any  rate,  as  above  stated,  this  point  does  not  seem 

to  be  raised.     , 

The  second  point,  however,  is  raised,  and  it  becomes  necessary  to  de- 
termine whether  the  work  shown  to  have  been  performed  is  within  the 


of  labor,  whether  in  the  construction 
work  as  such  or  in  repairs  and  altera- 
tions or  in  mining  work  or  in  building 
roads  or  cutting  cord  wood,  including 
the  labor  expended  in  building  roads 
or  preparing  fuel  for  use  in  producing 
power  to  carry  on  the  enterprise.  It 
may  be  said  it  is  as  much  labor  done 
on  the  claim  as  is  that  expended  in  the 
use  of  a  pick  or  hammer  and  drill  in 
the  workings  of  the  mine  above  or  be- 
low ground.  The  same  may  be  said 
of  operatives  in  the  mill  whose  duty 
requires  them  to  keep  the  machinery  in 
order  and  to  clear  away  debris  which 
accumulates  at  any  time  in  and  about 
the  buildings  erected  to  house  the 
machinery.  Mclntyre  v.  Montana  Gold 
Mountain  Min.  Co.,  41  Mont.  87,  108 
Pac.    353    (1910). 

XX.      In  Hauling  Quartz. 

Under  statute  providing  that  all  per- 
sons performing  labor  for  carrying  on 
any  mill  shall  have  a  lien  on  such  mill 
for  such  work  or  labor  done,  the  haul- 
ing of  quartz  to  the  mill  is  labor  per- 
formed within  the  meaning  of  the  act, 
and  for  which  a  mechanic's  lien  may 
be   enforced.      In    re   Hope   Min.    Co.,    1 


Sawy.  710,  Fed.  Cas.  No.   6681,  9  Mor. 
Min.  R.  364    (1871). 

The  lien  of  a  mechanic  is  a  remedy 
in  the  nature  of  a  charge  on  land,  given 
by  statute  to  the  persons  named  therein 
to  secure  a  priority  or  preference  of  pay- 
ment for  the  performance  of  labor  or 
supply  of  materials  to  buildings  or  other 
improvements  to  be  enforced  against  the 
particular  property  in  which  they  have 
become  incorporated.  The  labor  of  haul- 
ing ore  away  from  a  mine  to  a  mill 
does  not  enter  into  the  improvement  of 
the  mine  and  therefore  no  mechanic's 
lien  can  be  had  for  such  labor.  Barn- 
ard v.  McKenzie,  4  Colo.  251,  9  Mor. 
Min.   R.   403    (1878). 

The  hauling  of  quartz  to  a  mill  can 
properly  be  said  to  be  labor  in  carrying 
on  the  mill,  for  which  a  mechanic's  lien 
is  allowed.  Gould  v.  Wise,  18  Nev.  253, 
3  Pac.  30  (1884). 

A  laborer  hauling  coal  from  a  mine  to 
a  wharf,  held  entitled  to  a  lien.  Appeal 
of  Farmers'  Bank  of  Schuylkill  Co.,  1 
Walk.   (Pa.)   33    (1862). 

XXI.      In  Caring  for  Team. 
The  labor  of  a  lien  claimant  in  caring 
for    a    team    of    horses    upon    a   mining 
claim,  and  which  are  used  in  the  mining 


166 


Water  and  Mineral  Cases.         [New  Mexico 


terms  of  the  statute.  As  to  all  of  the  classes  of  labor,  save  that  of  car- 
ing for  the  teams  of  horses,  there  would  seem  to  be  no  difficulty  what- 
ever in  concluding  that  the  same  furnishes  a  basis  for  a  claim  of  lien 
under  the  statute.  They  were  all  work  upon  or  in  a  mining  claim  within 
the  terms  of  our  statute.  They  all  bear  direct  relations  to  the  mining 
operations  being  carried  on  by  the  owner  of  the  premises,  and  conse- 
quently in  most  if  not  all  of  the  states  would  be  held  to  furnish  the 
basis  for  a  claim  of  lien.  But  the  labor  expended  in  caring  for  the 
horses  of  the  mine  owner,  the  extent  and  value  of  which  is  unknown, 
is  more  remote,  and  under  some  of  the  mechanic's  lien  statutes  would  be 
held  not  to  furnish  a  foundation  for  a  claim  of  lien.  Of  course,  the 
original  idea  underlying  the  mechanic's  lien  statutes  was  that,  where 
the  person  contributed  his  labor  or  materials  to  the  construction  of  a 
building  or  other  improvement,  the  owner  ought  in  equity  and  good 
conscience  be  made  to  pay  for  the  increased  value  of  the  property  by 


operations  thereon,  is  subject  of  lien. 
Gray  v.  New  Mexico  Pumice  Stone  Co., 
principal  case. 

XXII.  Incidental  Labor. 
Where  liens  are  allowed  for  labor 
which  might  be  termed  incidental,  it 
must  be  directly  done  for  and  connected 
with  or  actually  incorporated  into  the 
building  or  improvement,  and  the  statute 
will  not  be  extended  to  cover  services  in- 
directly and  remotely  associated  with 
the  construction  work.  Rara  Avis  Gold 
&  S.  Min.  Co.  v.  Bouscher,  9  Colo.  3S5, 
12   Pac  433    (1886). 

XXIII.      Work   Done  Away  from 
Mine. 

A  mechanic's  lien  will  not  attach  to 
a  quarry  for  labor  done  in  preparing 
slate  taken  therefrom  for  market, 
where  the  labor  is  done  after  the  slate 
is  severed  and  taken  to  a  distance  from 
the  quarry.  Union  Slate  Co.  v.  Tilton, 
73  Me.  207    (1882). 

XXIV.  In  Prospecting. 
The  drilling  of  an  oil  well  is  a  "job" 
within  the  meaning  of  the  Ohio  Mechan- 
ic's Lien  Law.  Devine  v.  Taylor,  12 
Ohio  Cir.  Ct.  Rep.  723,  4  Ohio  Cir.  Dec. 
248    (1894). 


Under  the  Oregon  Act  of  1891,  pro- 
viding that  every  person  who  shall  do 
work  or  furnish  materials  for  the  work- 
ing or  development  of  any  mine,  lode, 
mining  claim  or  deposit  yielding  metals 
or  materials  of  any  kind,  or  for  the  work- 
ing or  development  of  any  such  mine, 
lode  or  deposit  in  search  of  such  metals 
or  materials,  etc.,  one  who  engages  in 
■  such  work  upon  a  claim  in  which  min- 
erals are  not  found  is  entitled  to  a  lien 
the  same  as  if  the  minerals  had  been 
found.  Williams  v.  Toledo  Coal  Co.,  25 
Or.  426,  36  Pac.  159,  42  Am.  St.  Rep.  799 
(1879). 

XXV.      At  Request  of  One  Other 
than    Owner. 

No  mechanic's  lien  can  be  enforced  for 
labor  done  for  and  at  the  request  of 
one  whom  the  laborer  at  the  time  of 
doing  the  work  knew  was  not  the  owner 
of  the  property  or  authorized  by  the 
owner  to  have  the  work  done.  Jurgen- 
son  v.  Diller,  114  Cal.  491,  46  Pac.  310, 
55  Am.  St.  Rep.  83    (1896). 

A  laborer  cannot  claim  lien  for  work 
done  for  one  who  held  a  bond  upon  a 
mine  by  which  he  agreed  to  pay  all  ex- 
penses, where  the  laborer  had  notice 
and  knowledge  of  such  bond  and  agree- 


1910] 


Gray  v.  New  Mexico  Pumice  Stone  Co. 


167 


reason  of  the  labor  or  materials  of  the  lien  claimant.     But  in  mining 
it  cannot  be  said  that  the  labor  of  a  man  adds  to  the  value  of  the  mine. 
On  the  other  hand,  it  necessarily,  except  in  strictly  prospecting  and  de- 
velopment work,  detracts  from  the  value  of  the  mine  by  removing  there- 
from its  ores,  which,  when  exhausted,  leave  the  mine  valueless.     It  may 
well  be  argued,  therefore,  that  the  statutes  extending  liens  to  laborers 
upon  mining  claims  were  intended  to  include  all  laborers  of  every  class 
and  kind  who  may  be  employed  in  and  about  the  mining  operations 
thereon.     Where  the  specific  relation  which  the  labor  of  a  lien  claimant 
must  bear  to  the  property  is  pointed  out  in  the  statute,  of  course  no 
other  labor  furnishes  the  basis  for  a  claim  of  lien,  but  where  the  statute 
is  general  in  terms,  as  ours  is,  and  provides  for  a  lien  of  any  person  who 
performs  labor  upon  or  in  a  mining  claim,  we  see  no  reason  why  labor 
of  any  class  bearing  a  direct  relation  to  the  mining  operations  should 
not  be  sufficient  to  form  a  basis  for  a  claim  of  lien.    It  has  been  so  held 
under  a  statute  identical  in  terms  with  ours.     Thompson  v.  Wise  Boy 
Co.,  9  Idaho  363,  74  Pac.  958;  Idaho  Co.  v.  Davis,  123  Fed.  396,  59  C. 
C.  A.  200.    See  27  Cyc.  770;  Cascaden  v.  Wimbish,  161  Fed.  241,  88  C. 
C.  A.  277.    We  therefore  hold  that  the  labor  expended  by  a  lien  claim- 
ant in  care  of  the  teams  of  horses  upon  a  mining  claim,  and  which  are 
used  in  the  mining  operations  thereon,  as  well  as  labor  performed  in  a 
lime  kiln,  closing  lime  bins,  and  gathering  up  tools  at  the  lime  quarry 
and  lime  kiln,  all  on  the  mining  claim,  furnish  a  basis  for  a  claim  of  hen 
upon  the  mining  claim.     It  follows,  therefore,  that  the  contention  that 
the  claim  of  lien  is  for  classes  of  labor  for  which  no  lien  can  be  allowed 
is  not  well  founded. 


ment.  Reese  v.  Bald  Mountain  Consol. 
G.  Min.  Co.,  133  Cal.  285,  65  Pac.  578 
(1901). 

A  mechanics  lien  may  be  enforced  for 
labor  in  extracting  ore  from  ledges  al- 
ready exposed,  and  drifting  and  stoking 
for  the  purpose  of  opening  up  new  ore 
bodies  and  discovering  better  ore,  when 
the  work  was  done  at  the  direction  of 
lessees,  under  contract  by  which  they 
were  to  work  and  develop  a  mine  and 
pay  the  lessors  a  percentage  of  the 
profits,  and  in  such  case  the  interests  of 
both  the  lessors  and  lessees  are  subject 
to  the  lien.  Higgins  v.  Carlotta,  148 
Cal.  700,  84  Pac.  758,  113  Am.  St.  Rep. 
344    (1906). 

A  person  or  corporation  cannot  unlaw- 


fully take  and  hold  possession  of  the 
property  of  another  and  create  liens 
against  it.  Idaho  Gold  Min.  Co.  v. 
Winchell,  6  Idaho  729,  59  Pac.  533,  96 
Am.  St.  Rep.  290   (1899). 

XXVI.      Apportionment  of  Lien. 

Work  performed  upon  a  dwelling- 
house  situated  upon  a  mining  claim  and 
in  a  tunnel  situated  upon  the  same  claim 
is  work  performed  upon  the  same  prop- 
erty, and  does  not  come  -within  section 
1188  of  the  California  Code  of  Civil 
Procedure,  requiring  work  to  be  appor- 
tioned when  done  upon  two  or  more 
separate  pieces  of  property.  Dickenson 
v.  Bolyer,  55  Cal.  285,  9  Mor.  Min.  R, 
415    (1880). 


1G8 


Water  and  Mineral  Cases.        [New  Mexico 


7.  A  point  not  mentioned  in  the  briefs  seems  to  deserve  at  least 
passing  notice.  Our  statute  provides  for  liens  upon  mining  claims.  The 
words  "mining  claim"  in  the  mining  country  have  a  certain  well-under- 
stood meaning,  namely,  a  portion  of  the  public  mineral  lands  of  the 
United  States,  to  which  qualified  persons  may  first  obtain  the  right  of 
occupancy  and  possession  by  means  of  location;  and  secondly,  title  by 
pursuing  certain  prescribed  methods  therefor.  It  appears  in  this  case 
that  this  mine  is  a  limestone  mine  consisting  of  a  section  of  land.  How 
the  title  of  the  defendant  owner  was  acquired  does  not  appear,  but  it 
is  quite  within  the  possibilities  that  the  same  may  have  been  acquired 
from  the  government  by  the  predecessor  in  title  of  the  present  owner 
by  means  of  an  agricultural  patent  of  some  kind.  The  question,  if  such 
were  the  case,  would  then  arise  whether  the  lien  statute  has  any  applica- 
tion to  labor  performed  upon  any  such  lands.  It  is  entirely  unnecessary 
for  us  to  decide  the  question  in  this  case  as  the  same  is  not  related,  and 
there  is  nothing  before  us  to  show  the  origin  of  the  title.  See  27  Cyc. 
534;  Morse  et  al.  v.  De  Ardo  et  al.,  107  Cal.  622,  40  Pac.  1018. 

There  being  no  error  in  the  record,  the  judgment  of  the  lower  court 
will  be  affirmed ;  and  it  is  so  ordered. 

POPE,  C.  J.,  and  McFIE,  WRIGHT,  and  MECHEM,  JJ.,  concur. 
ABBOTT,  J.,  having  tried  the  case  below,  did  not  participate  in  this 
decision. 


XXVII.      Lien   Void    in   Part  Void    in 
Toto. 
Where  a  lien  is   claimed   for  a   lump 
sum  for  services,  a  part  of  which  is  for 


services  for  which  no  lien  is  allowed,  the 
whole  claim  is  void.  Boyle  v.  Mountain 
Key  Min.  Co.,  9  N.  M.  237,  50  Pac.  347 

(1897). 


1911]  National  Mines  Co.  v.  Disteict  Couet.  169 


NATIONAL  MINES  CO.  v.  SIXTH  JUDICIAL  DISTRICT  COURT  HUMBOLDT 

COUNTY,  et  al. 

[Supreme  Court  of  Nevada,  June  20,  1911.] 

—  Nev.  —,116  Pac.  996. 

1.  Court   Survey   of   Contiguous    Mines — Constitutional    Law. 

A  statute  empowering  a  court,  upon  proper  showing,  to  order  a  survey  of  con- 
tiguous mining  property  although  no  suit  is  pending,  is  not  unconstitutional. 

2.  Same — Inherent  Power  of  Equity. 

Courts  of  equity  have  the  inherent  power  to  order  a  survey  of  contiguous  mining 
properties  in   cases   pending  before  them. 

3.  Same — Act   Construed — Pending    Suit. 

Section  3  of  an  act  for  the  protection  of  mines  and  mining  claims  giving  the 
right  to  obtain  from  court  an  order  directing  a  survey  of  contiguous  mining  prop- 
erties, held  not  to  authorize  an  order  except  in  a  pending  suit. 

4.  Statutes — Construction. 

In  construing  a  statute  the  language  of  which  is  not  clear  the  law  as  it  existed 
prior  to  the  enactment  should  be  considered. 

5.  Same. 

Where  an  act  is  equally  susceptible  of  two  constructions  the  court  will  not  pre- 
sume that  a  radical  change  in  existing  procedure  was  intended. 

6.  Same. 

Where  the  same  word  or  phrase  is  used  in  different  parts  of  a  statute,  it  will  be 
presumed  to  be  used  in  the  same  sense  throughout. 

7.  Same — Word  "Maintain." 

The  word  "maintain"  as  used  in  statutes  in  reference  to  actions,  comprehends 
frequently  the  institution  as  well  as  the  support  of  an  action,  but  in  the  statute 
in  question  it  is  construed  to  mean  merely  the  support  of  an  action. 

Original  proceedings  in  certiorari  by  the  National  Mines  Company 
against  the  Sixth  Judicial  District  Court  of  the  County  of  Humboldt 
and  the  judge  thereof  to  review  an  order  of  the  judge.    Order  annulled. 

For  petitioner — L.  G.  Campbell. 

For  respondents — Curler  &  Martinson  and  Rufus  C.  Thayer. 

This  is  an  original  proceeding  in  certiorari  to  review  an  order  of  the 
Sixth  Judicial  District  Court  of  the  State  of  Nevada,  in  and  for  the 
County  of  Humboldt,  the  Honorable  Edward  A.  Ducker,  district  judge 
thereof,  presiding,  directing  a  survey  of  the  boundaries  and  underground 

NOTE.  I  on  the  ground,  see  note  to  Flynn  Group 

As  to  the  marking  of  a  mining  location  |  Mining   Co.  v.  Murphy,   post,   p.   619. 


170  Water  and  Mineral  Cases.  [Nevada 

workings  of  the  Charleston  and  West  Virgina  lode  mining  claims,  the 
property  of  the  petitioner  herein. 

The  facts,  briefly  stated,  that  raise  the  question  of  law  presented  in 
this  proceeding,  are  as  follows :  One  H.  E.  Orr  on  the  19th  day  of  De- 
cember, 1910,  filed  in  the  Sixth  Judicial  District  Court  of  the  State  of 
Nevada,  in  and  for  Humboldt  County,  his  affidavit  and  application,  in 
which  he  alleged  among  other  things,  that  he  holds  a  contract  for  the 
working  of  the  Charleston  No.  1,  West  Virgina  No.  1,  and  West  Vir- 
ginia Fraction  lode  mining  claims  in  the  National  mining  district.  Hum- 
boldt  County,  Nev.,  and  describing  the  same,  and  that  the  petitioner 
herein  owns  the  Charleston  and  West  Virginia  lode  mining  claims,  in  said 
mining  district,  and  describing  the  same,  and  that  the  petitioner  herein 
is  in  possession  thereof,  that  the  said  claims  of  the  applicant  H.  E.  Orr, 
and  the  said  claims  of  the  petitioner  herein,  are  in  the  main  contiguous ; 
that  the  said  H.  E.  Orr  has  reason  to  believe,  and  does  believe,  that  the 
petitioner  herein  working  beyond  its  lines  on  the  strike  of  the  Charleston 
vein,  and  into  the  claims  of  the  said  applicant,  mentioned  above;  that 
there  was  not  at  the  time  said  application  and  affidavit  were  filed,  or  at 
any  time  hitherto,  a  suit  pending  in  the  said  district  or  any  court  be- 
tween the  said  H.  E.  Orr  and  the  petitioner  herein;  that  on  the  said 
19th  day  of  December,  1910,  the  Honorable  Edward  A.  Ducker,  judge 
of  the  said  court,  entered  an  order  on  said  affidavit  and  application, 
requiring  the  petitioner  herein  to  appear  in  said  court  on  the  29th  day  of 
December,  1910,  and  show  cause  why  the  order  for  survey  prayed  for  in 
the  said  affidavit  and  application  should  not  be  made;  that  on  the  said 
29th  day  of  December,  1910,  the  petitioner  herein  appeared  in  said 
court,  and  objected  to  said  court  hearing  said  matter  or  making  said 
order  of  survey,  for  the  reason  and  on  the  ground  that  the  said  court 
had  no  jurisdiction  to  hear  the  same  or  make  said  order  in  the  absence 
of  a  pending  suit  between  the  said  parties  in  the  said  court;  that  such 
objection  was  by  said  court  overruled,  and  that  certain  affidavits  were 
then  filed  therein  by  the  petitioner  herein  and  said  court  proceeded  to 
hear  the  said  application  of  the  said  H.  E.  Orr;  that  on  the  21st  day  of 
January,  191 1,  the  said  court,  through  its  said  judge,  made  an  order  on 
said  affidavit  and  application,  as  prayed  for  therein,  among  other 
things  appointing  four  surveyors  to  survey  the  surface  boundaries  of  the 
said  property  of  the  petitioner  herein,  and  all  the  underground  work- 
ings thereof.  The  order  for  the  survey  in  question  is  based  upon  the 
provisions  of  section  3  of  an  Act  of  the  Legislature  of  the  Territory  of 
Nevada,  entitled  "An  act  for  the  protection  of  mines  and  mining  claims," 
approved  December  17,  1862,  the  material  portions  of  which  read  as 
follows : 


1911]  National  Mines  Co.  v.  District  Court.  171 

"Section  I.  Any  person  or  persons,  company  or  corporation,  being  the 
owner  or  owners  of,  or  in  the  possession  under  any  lease  or  contract 
for  the  working  of  any  mine  or  mines  within  the  state  of  Nevada,  shall 
have  the  right  to  institute  and  maintain  an  action,  as  provided  by  law, 
for  the  recovery  of  any  damages  that  may  accrue  by  reason  of  the  manner 
in  which  any  mine  or  mines  have  been  or  are  being  worked  and  managed 
by  any  person  or  persons,  company  or  corporation,  who  may  be  the  owner 
or  owners,  or  in  possession  of  and  working  such  mine  or  mines  under  a 
lease  or  contract,  and  to  prevent  the  continuance  of  working  and  manag- 
ing such  mine  or  mines  in  such  manner  as  to  hinder,  injure,  or  by  reason 
of  tunnels,  shafts,  drifts  or  excavations,  the  mode  of  using,  or  the  char- 
acter and  size  of  the  timbers  used,  or  in  any  wise  endangering  the  safety 
of  any  mine  or  mines  adjacent  or  adjoining  thereto.  And  any  such  owner 
of,  or  in  the  possession  of  any  mine  or  mining  claim,  who  shall  enter  upon 
or  into,  in  any  manner,  any  mine  or  mining  claim,  the  property  of  another, 
and  mine,  extract,  excavate  or  carry  away  any  valuable  mineral  there- 
from, shall  be  liable  to  the  owner  or  owners  of  any  such  mine  or  mines 
trespassed  upon  in  twice  the  amount  of  the  gross  value  of  all  such 
mineral  mined,  extracted,  excavated  or  carried  away,  to  be  ascertained 
by  an  average  assay  of  line  excavated  material  or  the  ledge  from  which  it 
is  taken."     (As  amended,  Stats.  1891,  p.  37). 

"Sec.  3.  Any  person  or  persons  named  in  the  first  two  sections 
of  this  act,  shall  have  the  right  to  apply  for  and  obtain  from  any  district 
court,  or  the  judge  thereof,  within  this  territory,  an  order  or  survey  in 
the  following  manner :  An  application  shall  be  made  by  filing  the  affi- 
davit of  the  person  making  the  application,  which  affidavit  shall  state, 
as  near  as  can  be  described,  the  location  of  the  mine  or  mines  of  the 
parties  complained  of,  and  as  far  as  known,  the  names  of  such  parties ; 
also,  the  location  of  the  mine  or  mines  of  the  parties  making  such  ap- 
plication, and  that  he  has  reason  to  believe,  and  does  believe,  that  the 
said  parties  complained  of,  their  agent,  or  employees,  are  or  have  been 
trespassing  upon  the  mine  or  mines  of  the  party  complaining,  or  are 
working  their  mine  in  such  manner  as  to  damage  or  endanger  the  prop- 
erty of  the  affiant.  Upon  the  filing  of  the  affidavit  as  aforesaid,  the  court 
or  judge  shall  cause  a  notice  to  be  given  to  the  party  complained  of,  or 
the  agent  thereof,  which  notice  shall  state  the  time,  place,  and  before 
whom  the  application  will  be  heard,  and  shall  cite  the  party  to  appear  in 
not  less  than  five  or  more  than  ten  days  from  the  date  thereof,  to  show 
cause  why  an  order  of  survey  should  not  be  granted ;  and  upon  good 
cause  shown,  the  court  or  judge  shall  grant  such  order,  directed  to  some 
competent  surveyor  or  surveyors,  or  to  some  competent  mechanics,  or 
miners,  or  both,  as  the  case  may  be,  who  shall  proceed  to  make  the 


172  Water  and  Mineral  Cases.  [Nevada 

necessary  examination  as  directed  by  the  court,  and  report  the  result  and 
conclusions  to  the  court,  which  report  shall  be  filed  with  the  clerk  of  said 
court.  The  costs  of  the  order  and  survey  shall  be  paid  by  the  persons 
making  the  application,  unless  such  parties  shall  subsequently  maintain 
an  action  and  recover  damages,  as  provided  for  in  the  first  two  sections 
of  this  act,  by  reason  of  a  trespass  or  damage  done  or  threatened  prior 
to  such  survey  or  examination  having  been  made,  and  in  that  case,  such 
costs  shall  be  taxed  against  the  defendant  as  other  costs  in  the  suit.  The 
parties  obtaining  such  survey  shall  be  liable  for  any  unnecessary  injury 
done  to  the  property  in  the  making  of  such  survey."  Comp.  Laws,  §§ 
250,  252. 

NORCROSS,  J.  Petitioner  herein  contends  that  the  respondent 
court  was  without  jurisdiction  to  make  the  order  of  survey  in  question,  for 
the  reason  that  section  3  (Comp.  Laws,  §  252)  supra,  does  not  authorize 
such  order  in  advance  of  a  pending  suit;  that,  if  said  section  may  be  so 
construed  as  to  permit  such  order  in  advance  of  a  pending  suit,  then  the 
same  would  be  in  violation  of  the  Constitution  and  void ;  that  the  said 
applicant,  H.  E.  Orr,  was  not  within  the  class  of  persons  mentioned 
in  section  1  of  said  act  (Comp.  Laws,  §  250)  supra,  and  hence  not  entitled 
to  an  order  in  any  event  under  its  provisions.  There  have  been  but  few 
cases  considered  by  the  courts  involving  the  question  of  the  power  of  a 
court  to  make  an  order  for  a  survey  of  a  mine  prior  to  the  institution  of 
suit.  It  is  conceded  that,  in  the  absence  of  statutory  authority,  such  an 
order  may  not  be  made.  It  was  held  by  the  Supreme  Court  of  Montana 
in  St.  Louis  M.  &  M.  Co.  v.  Montana  Co.,  9  Mont.  288,  23  Pac.  510, 
that  under  the  provisions  of  section  376,  Code  Civ.  Proa,  the  then  prac- 
tice act  of  that  state,  an  order  could  be  made  without  a  suit  pending  for 
a  survey  of  the  underground  workings  of  a  mine  in  the  possession  of 
another  in  which  the  party  making  the  application  has  a  right  or 
interest.  Upon  appeal  to  the  Supreme  Court  of  the  United  States,  in- 
volving the  validity  of  the  judgment,  as  tested  by  the  fourteenth  amend- 
ment of  the  Federal  Constitution,  the  judgment  of  the  Montana  court  was 
affirmed.  152  U.  S.  160,  14  Sup.  Ct.  506,  38  L.  Ed.  398.  In  this  later  case 
the  court,  by  Brewer,  J.,  said :  "The  frequency  with  which  these  orders 
of  inspection  have  of  late  years  been  made,  and  the  fact  that  the  right 
to  make  them  has  never  been  denied  by  the  courts,  is  suggestive  that 
there  is  no  inherent  vice  in  them.  And,  if  the  courts  of  equity  by  virtue 
of  their  general  powers  may  rightfully  order  such  an  inspection  in  a 
case  pending  before  them,  surely  it  is  within  the  power  of  a  state  by 
statute  to  provide  the  manner  and  conditions  of  such  an  inspection  in 
advance  of  suit.''  Section  376  of  the  earlier  practice  act  of  Montana 
was  incorporated  in  the  practice  act  of  that  state  subsequently  adopted  and 


1911]  National  Mines  Co.  v.  Distsict  Coukt.  173 

is  now  section  1317  of  the  present  practice  act  (section  6876,  Revised 
Codes  of  Montana).  It  was  held  in  State  ex  rel.  Anaconda  C.  M.  Co.  v. 
District  Court,  26  Mont.  396,  68  Pac.  570,  69  Pac.  103,  that  this  section 
only  applied  in  cases  in  which  the  parties  seeking  a  survey  had  an  inter- 
est in  the  property  sought  to  be  surveyed,  and  that  in  all  other  cases  the 
power  to  order  a  survey  was  governed  by  sections  1314  and  1315,  Code 
Civ.  Proc.  1895  (Rev.  Codes,  §§  6874,  6875),  by  the  provisions  of  which 
a  survey  could  not  be  ordered  excepting  in  a  pending  action.  This 
decision  has  been  affirmed  in  several  subsequent  decisions  of  the  Montana 
court. 

In  the  case  of  People  ex  rel.  Calumet  G.  M.  &  M.  Co.  v.  De  France, 
Judge,  29  Colo.  309,  68  Pac.  267,  the  Supreme  Court  of  Colorado  an- 
nulled an  order  of  the  trial  court  directing  a  survey  of  certain  mining 
property  in  advance  of  a  suit,  and,  in  construing  the  provisions  of  section 
364  of  the  Colorado  Code  of  Procedure,  held  that  such  section  did  not 
contemplate  the  making  of  such  an  order  excepting  in  the  case  of  a 
pending  suit.  There  is  but  one  other  case  to  which  our  attention  has 
been  called  or  which  we  have  been  able  to  find  involving  the  question  of 
an  order  of  survey  made  in  the  absence  of  a  pending  suit,  to  wit,  the  case 
of  In  re  Carr,  2  Kan.  688,  35  Pac.  818.  The  Carr  case  was  in  habeas 
corpus  and  the  petitioner  who  had  been  committed  for  contempt  for  re- 
fusing admittance  to  the  surveyor  was  discharged,  but  not  upon  the 
ground  that  the  lower  court  was  without  jurisdiction  to  make  the  order 
in  question.  The  Kansas  statute  applied  only  to  coal  mines  and  em- 
powered the  court  or  judge,  upon  the  affidavit  of  a  person  in  which  it  shall 
be  made  to  appear  that  such  person  shall  have  good  reason  to  believe  that 
another  person  or  persons,  corporation  or  corporations,  are  without 
authority  encroaching  upon  the  land  of  the  person  aggrieved  to  make  an 
order  directing  the  county  surveyor  to  survey  the  mine  or  mines  of  the 
person  or  persons,  corporation  or  corporations  accused  for  the  purpose 
of  ascertaining  the  truth  thereof.    It  is  further  provided  in  the  act  that: 

"Sec.  3.  Whenever  it  shall  be  made  to  appear  by  petition  verified  by 
the  oath  of  the  plaintiff,  his  agent  or  attorney,  and  by  the  survey  of  the 
county  surveyor,  that  any  person  or  persons,  corporation  or  corpora- 
tions, is  or  are  without  authority,  mining  or  taking  coal  from  the  land  of 
the  plaintiff,  whether  held  by  lease  or  otherwise,  it  shall  be  the  duty  of 
the  proper  district  court  in  term  time,  or  the  judge  thereof  in  vacation, 
to  grant  a  temporary  injunction  restraining  such  person  or  persons, 
corporation  or  corporations,  from  mining  or  taking  coal  from  such  land 
till  the  further  order  of  the  court  or  judge. 

"Sec.  4.  The  proceedings  in  such  case  shall  be  in  all  respects  similar 
to  the  course  of  procedure  in  actions  for  injunction."    Laws  1877.  c.  127. 


174  Water  and  Mineral  Cases.  [Nevada 

The  Kansas  statute  was  attacked  as  being  unconstitutional,  but  whether 
the  attack  was  made  upon  the  ground  that  the  legislature  had  no  power 
to  provide  for  such  a  survey  in  the  absence  of  a  pending  suit  does  not 
appear.  The  constitutional  question  is  disposed  of  by  the  majority  opinion 
of  the  court  in  the  following  terse  sentence:  "We  perceive  no  good  reason 
for  holding  the  act  unconstitutional  so  far  as  it  applies  to  property  in  Kan- 
sas." Johnson,  J.,  concurred  in  the  view  that  a  survey  could  not  be  ordered 
or  competed  in  territory  outside  of  the  state  (the  coal  mine  being  upon  the 
boundary  line  between  the  states  of  Kansas  and  Missouri),  but  stated:  "I 
do  not  desire  to  express  any  opinion  upon  the  other  objections  made  to  the 
validity  of  chapter  127  of  the  Laws  of  1877."  In  the  opinion  of  the  court  by 
Allen,  J.,  appears  the  following :  "The  remedy  afforded  by  the  act  is  an  in- 
junction. The  survey  is  merely  preliminary  and  for  the  purpose  of  ascer- 
taining whether  a  cause  of  action  exists."  The  Kansas  statute  has  never 
been  involved  in  any  subsequent  case  thus  far  reported. 

We  think  it  may  be  conceded,  at  least  for  the  purposes  of  this  case, 
that  there  is  no  inherent  constitutional  impediment  against  the  legisla- 
ture empowering  the  court  or  judge,  upon  the  proper  showing,  to  make 
an  order  for  the  survey  of  mining  property  in  the  absence  of  a  pending 
suit,  and  that  the  only  question  we  need  consider  in  the  present  case  is 
whether  the  statute  of  this  state  in  question  empowers  a  district  court 
or  judge  to  make  such  an  order. 

It  is  now  well  settled  that  courts  of  equity  have  inherent  power  to 
make  orders  of  this  character  in  cases  pending  before  them.  Most,  if  not 
all,  of  the  mining  states,  however,  have  statutes  regulating  the  procedure 
to  obtain  these  orders.  These  statutes  generally  provide  for  such  orders 
to  be  made  only  in  pending  actions,  and  the  only  exceptions  thereto  may 
be  found  in  the  Kansas  and  Montana  statutes  heretofore  referred  to, 
unless  our  own  statute  should  be  construed  also  to  be  an  exception  to  the 
general  rule. 

In  enacting  the  statute  of  December  17,  1862,  supra,  the  territorial 
legislature  did  not  use  language  that  was  the  most  apt  to  express  clearly 
its  purpose  and  intent.  This  was  doubtless  the  first  statute  passed  in 
this  country  governing  an  order  of  survey  of  mining  properties  to  be 
obtained  by  a  party  who  had  no  interest  therein,  but  who  was  affected 
by  the  operations  thereof.  Section  1  of  the  act,  as  originally  passed,  did 
not  contain  the  last  sentence  quoted,  supra,  which  was  embodied  therein 
by  the  amendment  of  1891.  Counsel  upon  both  sides  in  this  proceeding 
have  presented  elaborate  arguments  upon  the  construction  of  section  3 
of  the  act;  counsel  for  petitioner  in  this  proceeding  contending  that  the 
section  should  be  construed  only  to  permit  an  order  for  survey  after  the 
action  is  instituted,  and  counsel  for  the  respondent  contending  for  the 


1911]  National  Mines  Co.  v.  District  Court.  175 

contrary  construction.  One  need  but  read  the  arguments  advanced  by 
respective  counsel  to  appreciate  that  the  section  is  ambiguous  in  many 
particulars. 

In  construing  any  statute  the  language  of  which  is  not  clear,  it  is  well 
first  to  consider  the  law  as  it  existed  prior  to  the  enactment.  At  the  time 
this  statute  was  enacted,  no  court  of  equity  in  this  country  had  ever 
exercised  its  inherent  power  to  order  a  survey  of  the  underground  work- 
ings of  a  mine,  and,  indeed,  it  is  doubtful  if  any  other  character  of  survey 
had  been  so  ordered.  The  first  instance  in  this  country  in  which  a  court 
of  equity  had  ordered  such  a  survey  was  in  the  Circuit  Court  of  the 
United  States  for  the  District  of  Nevada  in  the  case  of  Thornburgh  v. 
Savage  Mining  Company,  Fed.  Cas.  No.  13.986,  7  Mor.  Min.  Rep.  667, 
decided  in  1867.  The  next  case  reported  is  that  of  Stockbridge  Iron  Co. 
v.  Cone  Iron  Works,  102  Mass.  80,  decided  in  1869. 

From  the  beginning  of  about  the  nineteenth  century  courts  of  chan- 
cery in  England  exercised  the  power  in  pending  suits  to  order  surveys  of 
the  surface  and  underground  workings  of  mining  properties.  3  Wigmore 
on  Evidence,  §  1862,  p.  2456.  Sections  258  and  259  of  the  Practice  Act  of 
the  Territory  of  Nevada,  which  substantially  corresponds  to  sections  260 
and  261  of  our  present  Practice  Act  (Comp.  Laws,  §§  3355,  and  3356), 
provided  as  follows : 

"Sec.  258.  The  court  in  which  an  action  is  pending  for  recovery  of 
real  property,  or  a  judge  thereof,  may,  on  motion,  upon  notice  to  either 
party,  for  good  cause  shown,  grant  an  order  allowing  to  such  party  the 
right  to  enter  the  property  and  make  a  survey  and  measurements  thereof, 
for  the  purpose  of  the  action. 

"Sec.  259.  The  order  shall  describe  the  property,  and  a  copy  thereof 
shall  be  served  on  the  owner  or  occupant,  and  thereupon  such  party 
may  enter  upon  the  property  with  necessary  surveyors  and  assistants 
and  make  such  survey  and  measurements;  but  if  any  unnecessary  injury 
be  done  to  the  property,  he  shall  be  liable  therefor." 

From  the  foregoing  it  appears  that  at  the  time  the  Statute  of  1862 
was  enacted  no  court  possessed  power  to  make  an  order  of  survey  ex- 
cepting in  a  pending  suit.  Courts  of  equity  in  this  country  had  not  up 
to  that  time  assumed  the  exercise  of  their  inherent  powers  in  this  regard, 
and  they  were  then  undefined.  The  statute  of  the  territory  had  provided 
for  an  order  of  survey  in  pending  actions  for  the  survey  of  real  prop- 
erty, but  whether  this  statute  was  or  is  broad  enough  to  permit  a  sur- 
vey of  the  underground  workings  of  a  mine  in  an  action  for  damages  in 
trespass  committed  below  the  surface  of  the  earth  may  seriously  be 
questioned. 


176  Water  and  Mineral  Cases.  [Nevada 

We  think  it  appears  from  a  reading  of  section  I  of  the  act  in  question 
that  the  legislature  intended  either  to  create  a  new  cause  of  action  where 
none  existed  before  or  to  make  clear  and  unquestionable  what  may  have 
been  deemed  a  doubtful  right,  particularly  that  of  enjoining  mine  owners 
or  operators  from  so  conducting  their  operations  as  to  endanger  the 
safety  of  adjoining  properties.  The  right  to  recover  damages  for  a  tres- 
pass was  so  well  known  and  understood  that  it  needed  no  statutory  pro- 
vision to  create  or  clearly  define  such  right  of  action,  and  this  may  account 
for  the  specific  reference  to  trespass  in  the  third  section  and  not  in 
the  first  as  originally  enacted.  There  was,  however,  just  as  much  rea- 
son for  a  survey  in  the  case  of  an  underground  trespass  as  in  the  other 
causes  of  action  mentioned  in  section  i.  The  manifestly  crude  man- 
ner in  which  the  act  was  prepared  and  the  ambiguous  language  used 
has  left  it  open  to  argument  as  to  whether  the  legislature  intended  that 
an  order  of  survey  in  any  of  the  cases  mentioned  in  the  statute  could 
be  made  except  in  a  pending  suit. 

Were  the  act  equally  susceptible  of  two  constructions,  we  would  be 
disposed  to  hold  that  the  legislature  would  not  be  presumed  to  intend 
a  radical  change  in  existing  procedure,  and  would  construe  the  act  in 
harmony  therewith.     In  other  words,  we  would  not  construe  a  statute 
so  as  to  permit  such  an  order  for  survey  without  a  suit  pending  in  the 
absence  of  language  clearly  manifesting  such  an  intent  upon  the  part 
of  the  legislature.     We  think  section  3  does  not  express  such  a  clear 
intent,  but,  upon  the  contrary,  there  is  language  used  which,  under  a 
well-recognized    rule    of    statutory    construction,    manifests    a    contrary 
intent.    Both  parties  to  this  proceeding  have  laid  stress  upon  the  follow- 
ing sentence  of  section  3  as  supporting  their  divergent  views  as  to  the 
legislative  intent  as  deduced  from  the  language  of  the  statute :    "The  costs 
of  the  order  and  survey  shall  be  paid  by  the  persons  making  the  applica- 
tion, unless  such  parties  shall  subsequently  maintain  an  action  and  re- 
cover damages  as  provided  for  in  the  first  two  sections  of  this  act."  etc. 
We  think  the  contention  of  counsel  for  petitioner  herein  supported  by 
the  better  reasoning.     If  the  word  "maintain"  as  used  in  section  3  is 
given  the  same  meaning  as  it  has  in  section  1,  then  it  means  to  support 
and  carry  on  an  action  that  has  theretofore  been  instituted.     The  word 
"maintain,"  as  used  frequently  in  statutes  in  reference  to  actions,  com- 
prehends the  institution  as  well  as  the  support  of  the  action,  and  the  stat- 
utes of  this  state  contain  many  instances  where  it  is  used  in  this  broader 
sense.    It  is  used  in  other  instances  to  express  a  meaning  corresponding 
to  its  more  restricted  and  more  proper  definition,  as   in  the   cases  of 
Carson-Rand  v.  Stern,  129  Mo.  381,  31  S.  W.  772,  32  L.  R.  A.  420,  and 
Cal.  Savings  Co.  v.  Harris,   III   Cal.   133,  43  Pac.  525,  cited  in  peti- 


1911]  National  Mines  Co.  v.  Disteict  Cotjet.  177 

tioner's  brief,  where  it  was  construed  not  to  comprehend  the  institution 
of  an  action,  but  merely  the  support  thereof.  In  section  I  the  two 
words  are  used  together,  "institute  and  maintain" ;  and  hence  both  are 
used  in  their  restricted  sense.  If  both  words  had  been  used  in  section 
3,  there  would  have  been  no  room  for  construction.  The  power  to  make 
the  order  prior  to  the  institution  of  the  suit  would  have  been  manifest. 
The  word  "maintain"  only  was  used,  and  it  will  be  presumed  to  be  used 
in  the  same  sense  and  with  the  same  meaning  in  which  it  was  used  in 
section  1 ;  there  being  nothing  in  the  statute  to  clearly  indicate  that  it 
was  used  in  any  different  sense. 

"Where  the  same  word   or  phrase   is   used   in   different  parts   of   a 
statute,  it  will  be  presumed  to  be  used  in  the  same  sense  throughout ; 
and,  where  its  meaning  in  one  instance  is  clear,  this  meaning  will  be 
attached  to  it  elsewhere,  unless  it  clearly  appears  from  the  whole  statute 
that  it  was  the  intention  of  the  legislature  to  use  it  in  different  senses." 
36  Cyc.  1 132,  and  authorities  cited  in  notes.    Much  stress  has  been  laid 
on  the  fact  that  section  3,  supra,  does  not  use  the  word  "plaintiff"  as  the 
one  who  may  apply  for  the  survey  or  upon  whose  behalf  such  appli- 
cation mav  be  made,  but  uses  instead  the  words  "any  person  or  persons 
named  in  the  first  two  sections  of  this  act,  shall  have  the  right  to  apply," 
etc.,  also,  that  the  affidavit  is  required  to  set  forth  facts  that  would  be 
disclosed' by  the  complaint  were  an  action  pending,  as  indicating  that  the 
legislature  did  not  contemplate  a  pending  suit  at  the  time  of  the  appli- 
cation and  order  for  the  survey.     Conceding  the  force  of  this  argument, 
we  do  not  deem  it  sufficient  to  outweigh  the  reasons  given  in  support 
of  the  contrary  construction.    The  only  person  or  persons  named  m  sec- 
tion 2  of  the  act  in  question  is  the  judgment  debtor  or  debtors,  and  it 
is  difficult  to  conceive  why  the  legislature  should  have  referred  to  sec- 
tion 2  at  all,  as  that  section  only  provides  that  the  judgment  recovered 
in  the  action  shall  be  a  lien  on  the  property  of  the  judgment  debtors.    A 
judgment  debtor  must,  before  he  can  become  such,  be  a  party  to  an  ac- 
tion.   If  a  reference  to  section  2  is  any  aid  to  construing  section  3,  we  are 
unable  to  see  wherein  it  tends  to  support  the  position  of  counsel  for  re- 
spondent.    Section  1  specifies  all  those  who  have  a  right  of  action  under 
the  provisions  of  that  section,  and  any  within  the  class  mentioned  also 
have  the  right  to  apply  for  an  order  of  survey,  but  this  reference  does 
not  preclude  the  idea  that  such  persons  shall  be  parties  to  a  pending  suit. 
A  complaint  may  not  of  necessity  contain  all  the  matters  required  to  be 
set  forth  in  the  affidavit  for  the  order  of  survey,  and  it  is  not  required 
to  be  sworn  to,  and  this  may  have  been  the  reason  why  the  legislature 
specified  with  particularity  what  the  affidavit  should  contain.     In  any 
event,  it  is  not  inconsistent  with  the  construction  of  the  section  so  as  to 
W.  &  M.— 12 


178  Water  and  Mineral  Cases.  [Nevada 

require  a  pending  suit.  The  Colorado  statute,  like  ours,  does  not  use  the 
terms  "plaintiff"  and  "defendant"  to  indicate  the  parties  to  the  pro- 
ceeding to  obtain  the  order,  but  the  Colorado  court  construed  their  stat- 
ute to  apply  only  in  case  of  a  pending  suit.  While  possibly  not  a  matter 
to  be  considered  of  any  considerable  weight,  it  is  worthy  of  note  that 
the  text-writers  on  mining  law  have  placed  the  Nevada  statute  in  ques- 
tion in  the  category  of  those  requiring  an  action  pending  before  an  or- 
der of  survey  may  be  made.  Lindley  on  Mines,  §  873 ;  Snider  on  Mines, 
§  1637;  Morrison's  Mining  Rights  (14th  Ed.),  p.  432;  Costigan  on  Min- 
ing Law,  p.  519.  Mr.  Snider  in  his  work  says:  "It  will  be  readily  ob- 
served that  all  these  statutes  agree  upon  one  proposition,  namely,  that 
an  action  must  be  pending  at  the  time  the  application  for  a  survey  is 
made." 

Having  reached  the  conclusion  that  the  statute  in  question  does  not 
authorize  an  order  of  survey  excepting  in  a  pending  suit,  it  follows  that 
any  such  order  would  be  in  excess  of  jurisdiction  and  void. 

The  order  under  review  herein  is  annulled. 

SWEENEY,  C.  ].,  concurs. 

TALBOT,  J.  (dissenting).  I  am  unable  to  concur  in  all  the  con- 
clusions reached  by  my  learned  associates.  As  it  has  been  held  by  the 
Supreme  Courts  of  Kansas,  Montana,  and  of  the  United  States  that  the 
legislature  may  constitutionally  provide  for  surveys  without  the  insti- 
tution of  suit,  and  as  all  of  the  members  of  this  court  concede  that  this 
is  a  correct  construction  of  the  law;  and  no  court  has  decided  to  the  con- 
trary, the  only  question  for  determination  is  whether  the  legislature 
has  authorized  the  ordering  of  surveys  before  an  action  is  commenced. 

A  careful  examination  of  the  statute  makes  it  clear  that  the  legislature 
has  empowered  the  district  courts  and  judges  to  order  the  making  of 
surveys  without  suit,  and  has  designated  the  persons  upon  whose  applica- 
tion they  may  be  ordered.  The  statute  neither  directly  nor  by  implica- 
tion provides  that  application  for  the  survey  may  be  made  only  by  a 
party  who  has  previously  commenced  an  action,  or  that  any  suit  must 
be  pending  before  the  applicant  will  be  entitled  to  an  order  for  the  sur- 
vey. Consequently  the  decision  of  the  majority  of  the  court  legislates 
into  the  act  a  condition  not  placed  there  by  the  legislature.  This  is 
quite  apparent  from  the  first  few  lines  of  section  3  of  the  statute,  which 
provide  that:  "Any  person  or  persons  named  in  the  first  two  sections 
of  this  act,  shall  have  the  right  to  apply  for  and  obtain  from  any  district 
court,  or  the  judge  thereof,  within  this  territory,  an  order  or  [of]  survey  in 
the  following  manner :  An  application  shall  be  made  by  filing  an  affidavit 
of  the  person  making  the  application,  which  affidavit  shall  state,  as  near 


1911]  National  Mines  Co.  v.  Distkict  Court.  179 

as  can  be  described,  the  location  of  the  mine  or  mines  of  the  parties 
complained  of,  and  as  far  as  known,  the  names  of  such  parties ;  also,  the 
location  of  the  mine  or  mines  of  the  parties  making  such  application,  and 
that  he  has  reason  to  believe  and  does  believe  that  the  said  parties  com- 
plained of,  their  agent,  or  employees,  are  or  have  been  trespassing  upon 
the  mine  or  mines  of  the  party  complaining,  or  are  working  their  mine 
in  such  a  manner  as  to  damage  or  endanger  the  property  of  the  affiant." 
And  from  the  first  few  lines  of  section  i,  which  designate  that:  "Any 
person  or  persons,  company  or  corporation,  being  the  owner  or  owners 
of,  or  in  possession  under  any  lease  or  contract  for  the  working  of  any 
mine  or  mines  within  the  State  of  Nevada,  shall  have  the  right  to  insti- 
tute and  maintain  an  action,  as  provided  by  law,  for  the  recovery  of  any 
damages  that  may  accrue  by  reason  of  the  manner  in  which  any  mine  or 
mines  have  been  or  are  being  worked."  Comp.  Laws,  §§  250,  252. 
These  provisions  plainly  allow  any  person,  company,  or  corporation, 
being  the  owner  of,  or  in  possession  under  a  lease  or  contract  for  the 
working  of,  any  mine  "to  apply  for  and  obtain  from  any  district  court, 
or  the  judge  thereof,  an  order  or  survey,  by  filing  the  affidavit  of  the 
person  making  the  application,"  stating  the  things  required  by  the  statute 
to  be  in  this  affidavit,  none  of  which  require,  or  make  any  reference 
to,  a  pending  or  other  suit.  The  statute  then  directs  positively  that: 
"Upon  the  filing  of  the  affidavit  as  aforesaid,  the  court  or  judge  shall 
cause  a  notice  to  be  given  to  the  party  complained  of,  or  the  agent  there- 
of, which  notice  shall  state  the  time,  place,  and  before  whom  the  appli- 
cation will  be  heard,  and  shall  cite  the  party  to  appear  in  not  less  than 
five  or  more  than  ten  days  from  the  date  thereof,  to  show  cause  why 
an  order  of  survey  should  not  be  granted ;  and  upon  good  cause  shown, 
the  court  or  judge  shall  grant  such  order,  directed  to  some  competent 
surveyor  or  surveyors,  or  to  some  competent  mechanics,  or  miners,  or 
both,  as  the  case  may  be,  who  shall  proceed  to  make  the  necessary  exam- 
ination as  directed  by  the  court,  and  report  the  result  and  conclusions  to 
the  court,  which  report  shall  be  filed  with  the  clerk  of  said  court."  The 
language  quoted  is  all  that  is  provided  by  the  statute,  or  that  is  required, 
for  the  obtaining  of  the  order  for  survey,  and  the  interpolation  of  the 
requirement  by  the  opinion  of  the  majority  of  the  court  of  the  institution 
of  a  suit  before  the  application  or  order  for  the  survey  may  be  made  is 
a  condition  not  specified  or  required  by  the  language  of  the  act,  and  is 
purely  judicial  legislation.  If  this  court  in  this  proceeding  may  go  be- 
yond its  constitutional  power  of  construing  the  laws  and  enter  the  do- 
main of  legislation,  it  may  add  other  requirements  to  this  and  other 
statutes  after  persons  aggrieved  have  brought  actions  or  proceedings  in 
compliance  with  the  language  of  the  statute  upon  which  they  rely,  and 


180  Water  and  Mineral  Cases.  [Nevada 

they  may  be  defeated  and  mulcted  in  costs  because  the  court  after  hear- 
ing may  exact  some  condition  which  has  not  been  provided  by  the  leg- 
islature, and  of  which  they  were  not  aware,  and  there  will  be  little 
stability,  certainty,  or  safety  in  our  laws.  If  a  future  legislature  should 
desire  to  allow  surveys  to  be  ordered  without  suit,  notwithstanding  the 
decision  in  this  case,  what  language  could  it  use  in  an  amendment  or  a 
new  act  more  broadly  indicative  of  this  intention  than  the  language  now 
in  section  3  relating  to  the  application  or  order  for  the  survey,  unless 
by  negatively  stating  that  suit  need  not  be  brought — something  that  no 
rule  of  construction  requires? 

Effort  is  made  to  justify  the  decision  by  a  technical  construction  of  the 
next  succeeding  sentence  in  section  3,  which  relates  only  to  costs  of  the 
order  and  survey  after  they  have  been  made,  and  which  provides  no  re- 
quirement and  makes  no  reference  in  regard  to  the  application  or  order 
for  the  survey,  and  which  sentence  reads:  "The  cost  of  the  order 
and  survey  shall  be  paid  by  the  persons  making  the  application,  unless 
such  parties  shall  subsequently  maintain  an  action  and  recover  damages, 
as  provided  for  in  the  first  two  sections  of  this  act,  by  reason  of  a  tres- 
pass or  damage  done  or  threatened  prior  to  such  survey  or  examination 
having  been  made,  and  in  that  case,  such  costs  shall  be  taxed  against  the 
defendant  as  other  costs  in  the  suit."  True,  a  word  used  in  different 
sections  of  the  statute  will  ordinarily  be  construed  as  having  the  same 
meaning  in  the  different  places  in  which  it  is  used,  unless  it  is  manifest 
that  the  legislature  intended  it  in  a  different  sense.  If  the  word 
"maintain,"  as  used  in  the  sentence  just  quoted,  be  considered 
as  referring  to  a  suit  previously  brought,  as  held  in  the  opinion, 
this  construction,  as  given  by  a  majority  of  the  court,  would  refer 
only  to  the  costs  of  the  order  and  survey,  and  not  to  the  applica- 
tion for  the  making  of  the  order,  and  would  only  be  equivalent 
to  making  this  sentence  of  the  statute  read  as  it  does  now,  with  the 
addition  after  the  word  "action"  of  the  words  "commenced  before  the 
application  for  the  survey  was  made."  Hence  the  decision  is  based  upon 
a  section  which  relates  only  to  costs,  and  to  a  question  which  is  not  before 
this  court,  and  was  not  before  the  district  court ;  for,  no  survey  having 
been  made,  no  question  relating  to  the  costs  of  the  application  and  sur- 
vey has  been  presented  by  the  petition  or  pleadings.  If  the  word  "main- 
tain" were  among  any  of  the  provisions  relating  to  the  application  or 
order  for  the  survey,  or  if  it  be  considered  where  it  stands  in  the  sen- 
tence relating  only  to  costs,  the  language  of  section  3  in  several  particu- 
lars indicates  to  my  mind  that  the  legislature  did  not  intend  to  require 
the  institution  of  a  suit  before  the  application  or  order  for  the  sur- 
vey.     If   the   legislature   had    intended   to    require   the    commencement 


1911]  National  Mines  Co.  v.  Distkict  Coukt.  181 

of  a  suit,  it  may  be  assumed  that  they  would  have  so  stated,  and  that 
the  law-making  body  did  not  intend  a  condition  which  it  did  not  impose. 
As  there  was  a  practice  act  already  in  force  which  provided  for  surveys 
in  pending  suits,  it  would  have  been  useless  for  the  legislature  to  en- 
act that  the  applications  and  orders  for  the  survey  could  be  made  only 
after  suit.     It  would  also  seem  that  by  providing  that  "the  costs  of  the 
order  and  survey  shall  be  paid  by  the  person  making  the  application, 
unless  such  parties  shall  subsequently  maintain  an  action  and  recover 
damages,"  the  legislature  used  the  word  "maintain"  in  its  broad  sense 
of  "bringing  and  maintaining"   an  action,   for  otherwise  the  provision 
in  relation  to  costs,  including  the  word  "maintain,"  would  have  been 
omitted  from  the  section  as  useless ;  because,  if  the  survey  could  be  ob- 
tained only  in  a  pending  suit,  the  costs  of  the  survey  would  be  a  part 
of  the  costs  of  the  suit  recoverable  as  other  costs.    It  is  a  well-established 
rule  of  construction  that  a  statute  will  be  so  construed  as  to  give  effect  to 
its  language,  if  possible.     The  omission  from  all  that  part  of  the  act 
relating  to  the  application  and  order  for  the  survey  of  any  language  re- 
lating to  a  suit  or  to  the  parties  to  an  action,  and,  on  the  contrary,  the 
use  of  words  not  requiring  the  application  for  the  survey  to  be  made 
by  a  party  to  a  suit  or  in  an  action  pending,  but  allowing  it  to  be  made 
by  any  person  who  is  the  owner  of,  or  in  possession  under  a  lease  for 
the  working  of,  adjoining  ground,  indicate  that  it  was  not  the  intention 
of  the  legislature  to  restrict  the  application  for  the  survey  to  a  party 
to  an  action  previously  commenced.     The  policy  of  the  statute  in  this 
regard  is  a  matter  for  legislative  judgment;  but,  where  the  meaning  of 
the  statute  is  doubtful,  the  court  will  ordinarily  so  construe  the  statute 
as  to  give  it  an  effect  which  carries  the  best  policy,   for  in  doubtful 
cases  that  is  presumed  to  be  the  one   which  the  legislature  intended.  ^  The 
best  policy  would  allow  the  survey  to  be  ordered  in  advance  of  suit,  so 
that  the  applicant  for  the  survey  would  be  able  to  ascertain  the  true 
conditions  and  facts,     so  that  he  may  properly  allege  them  in  his  com- 
plaint or  not  commence  any  action  and  avoid  litigation  if  he  is  not  justi- 
fied as  he  may  believe  at  the  time  he  applies  for  the  survey.     Where 
there  are  grounds  for  a  suit,  there  is  no  good  reason  why  the  law  should 
confine  a  knowledge  of  the  conditions  to  one  of  the  parties,  who  is  liable 
to  the  others,  nor  why  the  superintendent  or  manager  of  a  mine  should 
prevent  an  adjoining  owner,  whose  ore  he  may  have  extracted  hundreds 
of  feet  below  the  surface,  and  the  stockholders  in  general,  from  ascer- 
taining the  facts.    Light  and  truth  are  better  than  darkness  and  conceal- 
ment." The  statute  wisely  provides  that  "the  parties  making  the  survey 
shall  be  liable  for  any  unnecessary  injury  done  to  the  property  in  the 
making  of  the  survey." 


182  Water  and  Mineral  Cases.  [Nevada 

The  word  "maintain"  is  often  used  in  our  statutes  in  relation  to  cor- 
porations, administrators,  and  others  with  a  meaning  that  includes  the 
commencement  of  or  right  to  institute  an  action.  In  5  Words  and 
Phrases  Judicially  Defined,  p.  4278,  in  reference  to  the  meaning  of  the 
word  "maintain,"  there  are  cited,  under  the  subdivision  "As  commence 
an  action,"  seven  cases  holding  that  the  word  "maintain,"  when  used  in 
statutes  relating  to  actions,  is  synonymous  with  or  means  "commence," 
"institute,"  or  "begin."  In  one  of  these  it  is  said:  "Men,  both  in 
and  out  of  the  profession  of  law,  often  speak  of  maintaining  an  action, 
having  reference  to  one  yet  to  be  instituted."  Boutiller  v.  The  Milwaukee, 
8  Minn.  97,  101  (Gil.  72,  76)  ;  Byers  v.  Bourret,  64  Cal.  73,  28  Pac.  61 ; 
Smith  v.  Lyon,  44  Conn.  175,  179;  Burbank  v.  Inhabitants  of  Auburn, 
31  Me.  590,  591 ;  Gumper  v.  YVaterbury  Traction  Co.,  68  Conn.  424,  36 
Atl.  806;  Kinsey  &  Co.  v.  Ohio  Southern  R.  Co.,  3  O.  C.  D.  249,  250; 
New  Carlisle  Bank  v.  Brown,  5  O.  C.  D.  94,  95.  Under  the  next  head- 
ing, "As  continue  an  action,"  the  same  work  states  that  "maintain,"  as 
used  in  a  pleading,  means  to  support  what  has  already  been  brought  into 
existence,  and  cites  the  two  cases  relied  upon  by  the  petitioner  and  the 
majority  of  the  court  (California  Sav.  &  Loan  Soc.  v.  Harris,  in  Cal. 
133,  43  Pac.  525;  Carson-Rand  Co.  v.  Stern,  129  Mo.  381,  31  S.  W. 
772,  32  L.  R.  A.  420),  and  another  case  (Moon  v.  Durden,  2  Exch.  30), 
stating  that  "maintain"  in  pleading  has  a  distinct  technical  signification. 

It  may  be  observed  that  the  prevailing  opinion  rests  upon  these  two 
cases  defining  the  word  "maintain,"  when  used  in  a  pleading,  as  mean- 
ing "to  uphold  or  sustain  an  action  already  commenced,"  and  upon  the 
use  of  that  word  in  section  3  of  our  statute,  where  it  only  relates  to  a 
question  of  costs,  which  is  not  before  the  court.  Although  "to  maintain" 
is  frequently  and  properly  used  in  the  sense  of  sustaining  or  upholding 
what  has  already  been  begun,  these  cases  are  distinguishable  from,  and 
are  not  in  conflict  with,  the  seven  holding  that  the  word  "maintain," 
when  used  in, a  statute  relating  to  actions,  means  or  includes  the  mean- 
ing "commence,"  "institute,"  or  "begin"  an  action.  As  used  with  "in- 
stitute" in  section  1,  the  word  may  be  considered  either  in  a  restricted 
or  in  its  broader  sense  as  partly  duplicating  and  partly  extending  the 
meaning  covered  by  the  word  "institute."  The  language  of  the  statute 
in  Montana  allowing  the  survey  before  suit  and  the  Colorado  act  which 
was  held  not  to  so  allow  the  survey  are  so  dissimilar  to  ours  that  the 
decisions  in  those  states  do  not  lend  aid  to  the  construction  of  our  enact- 
ment. The  Colorado  section  relating  to  surveys  closes  with  the  pro- 
vision that  "the  costs  of  the  proceeding  shall  abide  the  result  of  the 
suit."  Nor  do  the  cases  of  Carson-Rand  Co.  v.  Stern  and  California  Sav. 
&  Loan  Soc.  v.  Harris  apply    to    questions    similar    to    the    one    here 


1911]  National  Mines  Co.  v.  District  Couet.  183 

involved.  In  them  it  was  held  that  compliance  with  the  law  by  a  foreign 
corporation  after  instituting  an  action  and  before  the  filing  of  the  plea 
in  abatement  of  the  suit  on  the  ground  that  it  had  not  complied  with 
the  statute  will  remove  the  right  to  defend  on  the  ground  of  noncom- 
pliance under  a  statute  providing  that  no  action  shall  be  maintained  or 
defended  in  any  court  by  a  foreign  corporation  until  it  files  articles  of 
incorporation.  These  cases,  and  many  others,  including  Ward  v.  Mapes, 
147  Cal.  747,  82  Pac.  426,  are  reviewed  in  National  Fertilizer  Co.  v. 
Fall  River  Five  Cents  Savings  Bank,  196  Mass.  458,  82  N.  E.  671,  14 
L.  R.  A.  (N.  S.)  561,  565,  and  are  there  said  to  be  in  accordance  with 
the  weight  of  authority. 

The  district  judge  was  duly  empowered  by  the  statute  to  order  the 
survey  without  anv  suit  having  been  commenced,  and  his  action  in  this 
regard  ought  to  be  sustained. 


184 


[Wateb  and  Minekal  Cases.      [United  States 


CHARLES  WEST,  Attorney  General  of  the  State  of  Oklahoma,  App'lnt,  v. 
KANSAS  NATURAL  GAS  CO.,  et  al. 

[Supreme  Court  of  the  United  States,  May  15,   1911.] 

—  U.   S.  — ,  31   Sup.  Ct.  564. 

1.  Pipe    Lines — Interstate    Commerce — Constitutional    Law. 

A  statute  conserving  the  supply  of  natural  gas  of  the  State  of  Oklahoma  by  pro- 
hibiting interstate  pipe  lines,  is  unconstitutional  as  a  violation  of  the  interstate 
commerce  clause. 

2.  Same — Highways — Eminent   Domain — Interstate  Commerce. 

An  Oklahoma  statute  withholding  a  charter,  the  right  of  eminent  domain, 
and  the  right  to  use  the  highways  of  the  state  from  corporations  organized  for  the 
purpose  of  operating  interstate  pipe  lines,  held  unconstitutional  as  discriminating 
and  unreasonably  burdening  interstate  commerce. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Oklahoma 

Action  by  the  Kansas  Natural  Gas  Company  and  others  against  Charles 
West,  Attorney  General  of  the  State  of  Oklahoma  to  enjoin  the  en- 
forcement of  a  statute.  Judgment  for  plaintiffs.  Defendant  appeals. 
Affirmed. 

For  appellant — Charles  B.  Ames  and  Charles  West. 

For  appellee — D.  T.  Watson,  John  G.  Johnson,  John  J.  Jones,  and  E. 
L.  Scarritt. 

Mr.  Justice  McKENNA  delivered  the  opinion  of  the  court: 
This  appeal  brings  up  for  review  the  decree  entered  in  the  circuit 
court  of  the  United  States  for  the  Eastern  District  of  Oklahoma  in  four 
suits  consolidated  by  stipulation  of  the  parties. 

The  suits  had  the  common  purpose  of  attacking  the  constitutional 
validity  of  a  statute  of  Oklahoma,  enacted  in  1907,  which  is  referred 
to  as  chapter  67  of  the  Session  Laws  of  1907.  It  is  inserted  in  the 
margin  in  full.*    All  of  the  bills  have  the  same  foundation;  that  is,  the 


•Chapter  67.  Pipe  Lines — Regulating 
Gas  and  Oil  Pipe  Lines.  Article  1. 
An  Act  Regulating  the  Laying,  Con- 
structing, and  Maintaining  and  Opera- 
tion of  Gas  Pipe  Lines  for  the  Trans- 
portation of  Natural  Gas  within  the 


State  of  Oklahoma,  Defining  the 
Modes  of  Procedure  for  the  Exercise 
of  the  Right  of  Eminent  Domain  for 
Such  Purposes,  Providing  for  the  In- 
spection and  Supervision  of  the  Lay- 
ing of  Such  Pipe  Lines,  and  Limiting 


1911] 


West  v.  Kansas  Natural  Gas  Co.  et  al. 


185 


right  to  buy,  sell,  and  transport  natural  gas  in  interstate  commerce  not- 
withstanding the  provision  of  the  statute. 

The  suits  were  numbered  in  the  court  below  856,  857,  858,  and  859. 
In  856  the  Kansas  Natural  Gas  Company  was  complainant.  It  is  a 
corporation  of  the  State  of  Delaware,  and  is  engaged  in  the  business  of 
purchasing  and  distributing  natural  gas  to  consumers.  It  has  a  contract 
for  the  purchase  of  all  the  gas  that  can  be  produced  from  a  certain  well 
in  Washington  County,  Oklahoma,  and  has  acquired  by  purchase  the 
right  of  way  over  the  land  upon  which  the  well  is  located  for  the  laying 
of  a  pipe  line  for  the  transportation  of  the  gas,  and  proposes  to  extend 
its  trunk  pipe  lines  from  the  present  southern  terminus  thereof  in  the 
State  of  Kansas,  southward  across  the  Oklahoma  state  line  to  the  well. 
It  also  proposes  to  construct  lateral  and  branch  lines  from  the  trunk 
line  so  extended,  for  the  purpose  of  gathering  and  receiving  such  gas 
as  it  may  be  able  to  purchase  from  the  owners  of  other  wells.  Its  line 
will  not  be  used  in  any  way  for  local  traffic,  but  only  for  the  transportation 
of  the  gas  from  the  wells  in  Oklahoma  into  the  states  of  Kansas  and 
Missouri. 

In  No.  857,  the  Marnet  Mining  Company,  a  corporation  of  West 
Virginia,  is  complainant.  For  the  purpose  of  transporting  from  the 
producers  of  gas  in  the  state  of  Oklahoma  to  purchasers  and  consumers 
in  Kansas  and  Missouri,  it  has  purchased  a  right  of  way  over  certain 
lands  in  the  state,  and  proposes  to  construct  a  system  of  pipe  lines  to  be 
used  exclusively  in  such  interstate  transportation,  and  not  in  any  way 
for  local  traffic. 

In  No.  858,  A.  W.  Lewis,  a  citizen  and  resident  of  the  State  of  Ohio, 
is  complainant.  He  is  the  owner  of  an  oil  and  gas  lease  by  which  he 
has  acquired  the  right  to  construct  wells  on  a  certain  tract  of  land  in 
Oklahoma,  and  to  take  gas  therefrom  for  the  period  of  fifteen  years. 
He  has  constructed  a  well,  in  accordance  with  his  lease,  which  is  capable 
of  producing  many  millions  of  cubic  feet  of  gas  per  day,  which,  being 
in  excess  of  the  local  demand,  he  is  unable  to  sell  in  the  state;  and  he 
alleges  that,  being  prevented  from  transporting  it   from  the  state,   he 

porting  natural  gas  to  points  within 
this  state  by  complying  with  the  gen- 
eral corporation  laws  of  the  state  of 
Oklahoma,  and  with  this  act. 

Sec.  2.  No  corporation  organized  for 
the  purpose  of,  or  engaged  in,  the  trans- 
portation or  transmission  of  natural 
gas  within  this  state,  shall  be  granted 
a  charter  or  right  of  eminent  domain,  or 


the   Gas    Pressure   Therein,    and    Pro- 
viding    Penalties     for     the     Violation 
Thereof.     Be  it  enacted  by  the  people 
of  the  state  of  Oklahoma. 
Section     1.    Any    firm,     copartnership, 
association,    or    combination    of    individ- 
uals may  become  a  body  corporate  under 
the  laws  of  this  state  for  the  purpose 
of    producing,    transmitting,    or    trans- 


186 


Water  and  Mineral  Cases.      [United  States 


has  suffered  great  loss  and  damage,  and  is  deprived  of  his  property  with- 
out compensation. 

In  No.  859,  O.  A.  Bleakley,  a  citizen  and  resident  of  Pennsylvania,  is 
complainant.  He  has  received  from  the  Secretary  of  the  Interior  a 
right  of  way  over  the  land  of  certain  Indians  over  a  designated  route, 
paying  to  the  Indian  agent,  by  law  and  the  rules  and  regulations  of  the 
Interior  Department,  the  value  of  such  right  of  way  and  the  damages 
which  the  owners  of  the  land  over  which  he  will  pass  for  the  laying 
and  maintaining  of  a  pipe  line  for  the  exclusive  purpose  of  transporting 
natural  gas  from  Oklahoma  to  Kansas. 

It  is  alleged  in  the  bills  that  a  great  number  of  wells  have  been  drilled 
in  the  state  at  great  expense,  which  are  capable  of  producing  more  than 
1,000,000,000  cubic  feet  of  gas  per  day;  that  such  amount  is  more  than 
necessary  for  the  demands  of  the  people  of  the  state,  and  the  excess  of 
supply  is  required  to  meet  the  wants  of  those  residing  in  Missouri  and 
Kansas.  This  want,  it  is  alleged,  may  be  supplied  through  the  distribut- 
ing plants  now  constructed  and  those  contemplated  by  complainants, 
but  that  under  the  present  conditions  the  owners  are  required  to  cease 
development  work,  and  to  keep  large  and  valuable  wells  capped  and 
inoperative,  to  their  great  injury  and  damage.  It  is  alleged  that  in 
constructing  lines  for  such  transportation  it  will  not  be  necessary  to 
go  along  the  highways  of  the  state,  but  only  across  or  over  them ;  and 
that  the  lines  to  be  constructed  will  be  private  lines,  will  endanger  the  lives 
and  property  of  no  one,  and  will  be  constructed  in  just  conformity  with 
all  reasonable  rules  and  regulations  of  the  state. 

It  is  averred  that  each  of  the  defendants  is  charged,  by  virtue  of  his 
office,  to  execute  the  laws  and  Constitution  of  the  state,  and  that  he 
has  undertaken  to  enforce  the  act  hereinbefore  referred  to  by  proceedings 
in  courts  and  by  force  of  arms,  and  it  is  his  intent  and  avowed  purpose 
to  prevent  the  transportation  of  gas  beyond  the  limits  of  the  state.  The 
particular  acts  are  set  forth. 

The  bills  pray  discovery,  that  the  act  above  referred  to  be  declared 
void  as  being  in  conflict  with  section  8,  art.  1,  and  the  14th  Amendment  of 
the  Constitution  of  the  United  States,  and  that  the  defendants  be  enjoined 
from  the  things  attributed  to  them.     General  relief  is  also  prayed. 


right  to  use  the  highways  of  this  state, 
unless  it  shall  be  expressly  stipulated  in 
such  charter  that  it  shall  only  trans- 
port or  transmit  natural  gas  through 
its  pipe  lines  to  points  within  this 
state;  that  it  shall  not  connect  with, 
transport   to   or   deliver   natural   gas   to 


individuals,  associations,  copartnerships, 
companies,  or  corporations  engaged  in 
transporting  or  furnishing  natural  gas 
to  points,  places,  or  persons  outside  of 
this  state. 

Sec.    3.  Foreign     corporations     formed 
for   the   purpose   of,   or   engaged   in    the 


1911] 


West  v.  Kansas  Natural  Gas  Co.  et  al. 


187 


Demurrers  were  filed  to  the  bills,  which  were  overruled   (172  Fed. 
545),  and  the  defendants  answered. 

It  was  subsequently  stipulated  that  the  causes  be  consolidated  and  that 
appellant  file  an  amended  answer  in  each  of  the  cases,  and  the  answers 
of  the  other  defendants  be  withdrawn.  It  will  only  be  necessary  to  con- 
sider the  amended  answer,  not,  however,  its  details  either  of  denial  or 
averment,  but  only  of  certain  facts  especially  relied  on.  These  are: 
The  present  daily  capacity  of  the  gas  wells  of  the  state  is  approximately 
1*4  billion  cubic  feet,  the  daily  consumption  being  more  than  can  be 
safely  taken  from  them  "without  rapidly  destroying  their  efficiency  and 
depleting  this  great  natural  resource  of  the  state."  The  gas  area  of  the 
state  is  found  in  oil-producing  sand,  and  the  experience  of  all  other 
natural  gas  fields  demonstrates  that  the  gas  found  in  and  taken  from 
such  sand  is  of  much  shorter  duration  than  that  found  in  purely  gas  sand, 
and  if  the  acts  of  complainants  be  permitted  "the  field  will  be  exhausted 
in  a  very  short  time."  While  it  is  true  that  the  gas  in  Oklahoma  is 
found  in  a  gas  and  oil-producing  sand  which  extends  underneath  large 
contiguous  areas  of  land,  every  well  takes  from  this  unbroken  area  and 
diminishes  the  producing  capacity  of  every  other  well  of  the  entire 
field,  the  acts  of  the  complainants,  if  permitted,  will  greatly  damage  and 
injure  the  entire  field  and  take  the  property  of  all  other  owners  therein, 
and  "that  the  act  of  the  Legislature  of  the  State  of  Oklahoma,  alleged 
in  the  bill  to  be  unconstitutional,  was  an  effort  on  the  part  of  the  legis- 
lature of  the  state  to  preserve  the  natural  gas  field  of  the  state  from  de- 
structive waste." 

Certain  cities  of  the  states,  which,  by  reason  of  their  proximity  to 
the  gas  field,  should  be  supplied  with  gas,  are  not  now  supplied  with  it, 
and  will  never  be  if  complainants  are  allowed  to  transport  it  from 
Oklahoma  without  regulation  by  laws  of  the  state,  and  the  population  of 
the  state  is  now  1,750,000,  and  is  growing  more  rapidly  than  that  of 
any  other  state  in  the  Union.  On  account  of  the  general  prairie  character 
of  the  state,  it  is  without  domestic  fuel  except  coal  and  natural  gas. 
Its  supply  of  coal  is  growing  rapidly  more  costly  to  produce,  that  the 
petroleum  oil  produced  is  practically  transported  from  the  state,  "and 
that,  substantially,  the  only  natural,  practical,  usable  fuel,  both  for 
domestic  and  industrial  use,  is  natural  gas." 


business  of,  transporting  or  transmit- 
ting natural  gas  by  means  of  pipe  lines, 
shall  never  be  licensed  or  permitted  to 
conduct  such  business  within  this  state. 
Sec.  4.  No  association,  combination, 
copartnership,  or  corporation  shall  have 
or    exercise    the    right    of    eminent    do- 


main within  this  state  for  the  purpose 
of  constructing  or  maintaining  a  gas 
pipe  line  or  lines  within  this  state,  or 
shall  be  permitted  to  take  private  or 
ipublic  property  for  their  use  within  this 
state,  unless  expressly  granted  such 
power  in  accordance  with  this  act. 


188 


Water  and  Mineral  Cases.      [United  States 


The  complainants  may  and  are  actually  in  the  process  of  erecting 
enormous  pumping  stations  outside  of  the  state,  which  "might  reasonably 
and  would  inevitably  render  entirely  useless  all  the  present  lines  (gas) 
in  Oklahoma,  and  take  away  from  the  cities  and  towns  of  Oklahoma  the 
entire  practical  use  of  their  sole  and  natural  fuel,  because  when  gas  is 
removed  by  the  limited,  prudent,  and  natural  rock  pressure,  the  nature 
and  formation  of  the  gas  and  oil  sand  is  not  radically  changed  ;  but  if  large 
pumps  to  pump  out  the  wells,  out  of  proportion  to  the  rock  pressure,  are 
used,  as  are  now  actually  threatened,  by  the  complainant,  the  gas  and 
oil  sand  is  actually  broken  down  as  though  shot  with  dynamite  and  other 
violence,  and  the  salt  water  thereunder,  always  to  be  found,  at  once 
drowns  out  the  wells,  where  rock  pressure  has  been  too  greatly  or  rapidly 
decreased ;  that  the  use  of  the  highways  is  a  portion  of  the  public  property, 
and  the  same  should  be  confined  to  those  who  supply  all  alike  who  may 
seek  to  be  served;  and  because  of  its  nature  and  extent,  and  because 
the  enormous  amount  of  capital  needed  to  make  practical  investments 
tends  to  create  monopolies,  the  business  of  gas  transportation  is  a 
public  business  in  interstate  trade,  over  which  congress  has  never  legis- 
lated, and  to  permit  complainant  to  carry  out  its  said  attempt  and  intent 
to  monopolize  the  natural  gas  of  the  state  and  transport  it  away  without 
regulation  by  the  state  laws,  over  and  across  the  state's  highways,  without 
the  state's  consent,  would  be  to  devote  public  property  to  private  and 
exclusive  use,  against  the  principles  of  the  Constitution  of  this  state 
and  the  United  States,  and  deprive  the  intending  purchasers  of  natural 
gas  in  this  state  from  all  supply  whatsoever." 

There  are  other  allegations  of  the  effect  of  contemplated  acts  of  the 
complainants  upon  the  gas  supply  of  the  state,  and  there  are  admissions 
that  pipe  lines  are  the  only  practical  means  of  transportation;  but  this 
it  is  alleged,  is  due  to  its  cheapness  as  compared  with  other  means  of 
transportation,  considering  the  price  of  gas  as  a  fuel,  as  compared  with 
other  fuel  products  and  the  transportation  of  gas  from  other  fields. 
And  it  is  set  forth  that  the  highways  of  the  state  are  open  to  the  trans- 
portation of  gas  by  any  means  which  do  not  "make  a  permanent  appropria- 
tion of  any  part  of  the  highways  by  placing  a  plant  in  the  same." 

It  is  further  alleged  that  in  order  to  supply  the  cities  of  the  state 
with  gas,  lines  are  continually  being  extended,  and  that  there  are  several 


See.  5.  The  laying,  constructing, 
building,  and  maintaining  a  gas  pipe 
■or  lines  for  the  transportation  or  trans- 
mission of  natural  gas  along,  over,  un- 
der, across,  or  through  the  highways, 
roads,  bridges,  streets,  or  alleys  in  this 
state,  or  of  any  county,  city,  municipal 


corporation,  or  any  other  private  or 
public  premises  within  this  state,  is 
hereby  declared  an  additional  burden 
upon  said  highway,  bridge,  road,  street, 
or  alley,  and  any  other  private  or  pub 
lie  premises,  may  only  be  done  when  the 
right  is  granted  by  express  charter  from 


1911] 


West  v.  Kansas  Natukal  Gas  Co.  et  al. 


189 


other  pipe  lines  which  are  seeking  to  carry  on  business  in  the  state  in  the 
same  manner  as  desired  by  complainant,  and  if  the  right  exist  in  com- 
plainant, it  exists  in  all  other  foreign  corporations,  and  if  exercised,  lines 
will  be  extended,  as  one  part  of  the  field  becomes  exhausted,  to  other  parts 
of  the  field,  and  the  lines  supplying  the  cities  of  the  state  will  also  be  ex- 
tended in  like  manner  and  effect,  and  a  speedy  destruction  of  the  supply 
of  the  gas  in  the  state  will  result. 

It  is  admitted  that  there  are  maintained  and  operated  in  the  state 
natural  gas  pipe  lines;  but  it  is  alleged  that  they  are  in  daily  use  for 
the  transportation  of  gas  within  the  state.  And  it  is  further  admitted 
that  they  in  many  instances,  and  often  at  great  length,  run  over,  along, 
and  across  the  highways  of  the  state,  and  "are  operated  without  hurt, 
hindrance,  damage,  or  inconvenience  to  the  traveling  public  or  to  abutting 
property  owners."  But  it  is  averred  that  "they  were  laid  and  are  oper- 
ated according  to  the  laws  in  force  at  the  time,  and  pursuant  to  the  laws 
of  the  state." 

Appellant  admits  that  it  is  his  duty  to  execute  the  laws  of  the  state, 
and  that  it  is  his  intention  to  enforce  chapter  67  of  the  Session  Laws  of 
1907  and  1908,  and  the  acts  amendatory  and  supplementary  thereto  "in 
so  far  as  the  same  must  or  should  be  done  by  litigation  in  which  the 
state  is  interested,"  but  that  his  duties  rest  solely  upon  himself,  and  are 
not  controlled  by  others,  and  that  he  intends  to  prevent  solely  by  actions 
in  competent  courts  the  laying,  constructing,  and  operating  of  gas  pipe 
lines  in,  on,  under,  across,  or  along  the  highways  of  the  state  by  com- 
plainant or  by  any  other  person  not  authorized  so  to  do  by  the  laws  of 
the  state.  He  denies  the  acts  of  force  charged  against  him,  or  that  he 
proposes  to  use  force.  The  other  denials  and  admissions  it  is  not  necces- 
sary  to  set  out.     A  dissolution  of  the  injunction  is  prayed. 

The  cases  were  consolidated,  as  we  have  said,  and  submitted  on  the 
bills  and  the  answers,  "to  the  end  that  an  immediate  determination  thereof 
and  final  decree  therein"  might  be  obtained. 

A  final  decree  was  entered,  declaring  that  the  statute  referred  to  "is 
unreasonable,  unconstitutional,  invalid,  and  void,  and  of  no  force  or 
effect  whatever,"  and  a  perpetual  injunction  was  awarded  against  its 
enforcement 


the  state,  and  shall  not  be  constructed, 
maintained,  or  operated  until  all  dam- 
ages to  adjacent  owners  are  ascertained 
and  paid  as  provided  by  law. 

Sec.  6.  All  pipe  lines  for  the  trans- 
portation or  transmission  of  natural  gas 
in  this  state  shall  be  laid  under  the  di- 
rection   and    inspection    of    proper    per- 


sons skilled  in  such  business,  to  be  des- 
ignated by  the  chief  mining  inspector 
for  such  duty,  and  the  expenses  of  such 
inspection  and  supervision  shall  be 
borne  and  paid  for  by  the  parties  laying 
and  constructing  such  pipe  lines  for  tne 
transportation  or  transmission  of  nat- 
ural gas. 


190 


Water  and  Mineral  Cases.      [United  States 


The  basis  of  the  decree  of  the  court  was  that  expressed  in  its  opinion 
ruling  upon  the  demurrers :  to  wit,  that  the  statute  of  Oklahoma  was 
prohibitive  of  interstate  commerce  in  natural  gas,  and  in  consequence  was 
a  violation  of  the  commerce  clause  of  the  Constitution  of  the  United 
States,  and  that  being,  as  the  court  said,  its  dominant  purpose,  it  would, 
if  enforced  against  complainants,  "invade  their  rights  as  guarantied  by 
the  14th  Amendment  of  the  National  Constitution"  and  also  the  Con- 
stitution of  the  state.     172  Fed.  545. 

These  conclusions  are  contested,  and  it  is  asserted  that  the  statute's 
"ruling  principle  is  conservation,  not  commerce ;  that  the  due  process 
clause  is  the  single  issue."  And  due  process,  it  is  urged,  is  not  violated, 
because  the  statute  is  not  a  taking  of  property,  but  a  regulation  of  it 
under  the  police  power  of  the  state.  The  provisions  of  the  act,  it  is 
further  insisted,  are  but  exercise  of  the  police  power  to  conserve  the 
natural  resources  of  the  state,  and  as  means  to  that  end  the  right  of 
eminent  domain  is  forbidden  to  foreign  corporations  engaged  in  trans- 
porting gas  from  the  state,  and  the  use  of  the  highways  of  the  state  con- 
fined to  pipe  lines  operated  by  domestic  corporations,  in  order  that  gas 
may  be  transmitted  only  between  points  within  the  state.  And  such 
exercise  of  power,  it  is  contended,  does  not  regulate  interstate  commerce, 
but  only  affects  it  indirectly. 

A  paradox  is  seemingly  presented.  Interstate  commerce  in  natural 
gas  is  absolutely  prevented, — prohibited,  in  effect, — for  we  think  it  is  un- 
doubted that  pipe  lines  are  the  only  practical  means  of  gas  transportation, 
and  to  prohibit  interstate  commerce  is  more  than  to  indirectly  affect  it. 
Every  provision  of  the  statute  is  directed  to  such  result.  Pipe  line  con- 
struction is  confined  to  corporations  organized  under  the  laws  of  the 
state,  and  the  condition  of  their  incorporation  is  that  they  shall  only  trans- 
mit gas  between  points  in  the  state,  and  shall  not  transport  to  or  deliver 
to  corporations  or  persons  engaged  in  transporting  or  furnishing  gas 
to  points  outside  of  the  state.  The  right  of  eminent  domain  is  given  alone 
to  such  corporations,  and  the  use  of  the  highway  is  confined  to  them; 
and  that  there  be  no  element  of  control  over  them  omitted,  a  violation 
of  the  statute  is  punished  by  a  forfeiture  of  charters  and  of  property. 
Nor  can  a  new  corporation  be  formed  if  even  one  of  its  stockholders  was 
a,  stockholder  of  an  offending  corporation. 


Sec.  7.  No  pipe  line  for  the  transpor- 
tation or  transmission  of  natural  gas 
shall  be  subjected  to  a  greater  pressure 
than  300  pounds  to  the  square  inch, 
except  for  the  purpose  of  testing  such 
lines,  and  gas  pumps  shall  not  be  used 
on  any  gas  pipe   line   for  the   transpor- 


tation or  transmission  of  natural  gas, 
or  used  on  or  in  any  gas  well  within 
this  state. 

Sec.  8.  Any  corporation  granted  the 
right  under  the  provisions  of  this  act 
to  exercise  the  right  of  eminent  domain, 
or    use    the    highways    of    this    state    to 


1911] 


West  v.  Kansas  Natukal  Gas  Co.  et  al. 


191 


To  such  stringent  subjection  foreign  corporations  could  not  be  brought, 
so  they  are  absolutely  excluded  from  the  state  by  the  following  provision : 
"Sec.  3.  foreign  corporations  formed  for  the  purpose  of,  or  engaged  in 
the  business  of,  transporting  or  transmitting  natural  gas  by  means  of  pipe 
lines,  shall  never  be  licensed  or  permitted  to  conduct  such  business  within 
this  state." 

The  statute  presents  no  embarrassing  questions  of  interpretation.  It 
was  manifestly  enacted  in  the  confident  belief  that  the  state  had  the  power 
to  confine  commerce  in  natural  gas  between  points  within  the  state,  and 
all  of  the  rights  conferred  on  domestic  corporations,  all  of  the  rights  denied 
to  foreign  corporations,  were  means  to  such  end.  And  the  state  having 
such  power,  it  is  contended,  if  its  exercise  affects  interstate  commerce,  it 
affects  such  commerce  only  incidentally.  In  other  words,  affects  it  only, 
as  it  is  contended,  by  the  exertion  of  lawful  rights,  and  only  because  it 
cannot  acquire  the  means  for  its  exercise. 

The  appellant  makes  a  broader  contention.  The  right  to  conserve,  or 
rather,  the  right  to  reserve,  the  resources  of  the  state  for  the  use  of  the 
inhabitants  of  the  state,  present  and  future,  is  broadly  asserted.  "The  rul- 
ing principle  of  the  law,"  counsel  say,  "is  conservation,  not  commerce." 
It  is  true  the  means  adopted  to  secure  conservation  is  more  insistently 
brought  forward  than  the  right  of  conservation,  and  the  power  of  the  state 
over  its  corporations  and  over  its  highways  and  its  right  to  give  or  with- 
hold eminent  domain  is  many  times  put  forward  in  the  argument  and  illus- 
trated by  the  citation  of  many  cases.  It  cannot  but  be  observed  that 
these  rights  need  not  the  support  of  one  another.  If  the  right  of  conser- 
vation be  as  complete  as  contended,  it  could  be  secured  by  simple  pro- 
hibitions or  penalties ;  if  the  power  over  highways  and  eminent  domain 
be  as  absolute  as  asserted,  it  will  have  to  be  given  effect,  no  matter  for 
what  purpose  exercised.  We  are  therefore  admonished  at  the  very  start 
in  the  discussion  of  the  importance  of  the  questions  presented  and  the 
power  which  the  states  may  exert  against  one  another,  even  accepting 
the  concession  of  appellant  that  congress  may  break  down  the  isolation 
by  granting  the  right  not  only  to  take  private  property,  but  to  subject  the 
highways  of  the  state,  against  the  consent  of  the  state,  to  the  uses  of 
interstate  commerce.  With  full  appreciation  of  the  importance  of  the 
questions  involved,  we  pass  to  their  consideration. 


construct  or  maintain  a  gas  pipe  line  or 
lines  for  the  transportation  or  trans- 
mission of  natural  gas  to  points  within 
this  state,  which  shall  transport  or 
transmit  any  natural  gas  to  a  point 
outside  of  or  beyond  this  state,  or  shall 
■connect  with  or  attempt  to  connect  with 


or  threaten  to  connect  with  any  gas 
pipe  line  furnishing,  transporting,  or 
transmitting  gas  to  a  point  outside  of 
or  beyond  this  state,  shall  by  each  or 
all  of  said  acts  forfeit  all  right  granted 
it  or  them  by  the  charter  from  this  state, 
and    said    forfeiture    shall    extend    back 


192 


Water  and  Mineral  Cases.      [United  States 


As  to  conservation,  appellant  says  that  "the  case  narrows  itself  to 
the  single  question  of  whether,  in  any  event,  a  state  has  the  right  to 
conserve  its  natural  resources ;  and,  second,  has  it  the  right  to  preserve 
a  common  supply  for  the  equal  use  of  all  those  who  may  by  law  resort 

to  it." 

The  second  question  is  not  presented  in  the  case.  The  provisions  of  the 
statute  are  not  directed  against  waste.  They  are  directed  against  any 
use  of  the  gas  except  in  the  state.  The  right  of  the  state  "to  preserve  the 
common  supply  for  the  equal  use  of  all"  owners  is  not  denied  by  appel- 
lees. We  put  the  question  out  of  consideration,  therefore,  except  in- 
cidentally, and  concede  the  right  of  the  state  to  preserve  the  supply  of 
gas,  as  we  shall  hereafter  set  forth. 

The  extent  of  power  which  the  second  question  implies  a  state  pos- 
sesses challenges  serious  inquiry.  The  natural  resources  of  a  state  may 
be  other  than  natural  gas ;  for  example,  may  be  timber  and  coal  and  iron 
and  other  metals  ;  but  it  is  contended  that  the  right  of  conservation  extends 
to  these,  and  the  broad  statement  of  the  first  question  is  qualified  in  the 
argument  by  the  properties  of  natural  gas  and  the  limitation  of  its  supply. 
This,  it  is  contended,  gives  a  range  to  the  police  power  of  the  state  which 
otherwise  it  would  not  possess.  And  such  power,  as  we  understand  the 
further  contention  to  be,  may  determine  not  only  the  conservation  of  the 
resources  of  the  state,  but  as  to  what  class  of  persons  may  use  them,  as 
dependent  upon  their  transportation  in  state,  rather  than  in  interstate  com- 
merce. The  contention  is  discussed  at  length  and  variously  illustrated.  In- 
deed, analogies  are  adduced  of  limitations  upon  the  use  of  property  by  vir- 
tue of  the  police  power  under  conditions  which  invoke  its  exercise  for  the 
advancement  of  the  general  welfare.  We  select  for  review  from  the  cases 
brought  forward,  those  nearest  to  our  inquiry,  which  are  Ohio  Oil  Co.  v. 
Indiana,  177  U.  S.  190,  44  L.  Ed.  729,  20  Sup.  Ct.  Rep.  576,  20  Mor.  Min. 
Rep.  466;  Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  ante,  337, 
31  Sup.  Ct.  Rep.  337;  Hudson  County  Water  Co.  v.  McCarter,  209  U.  S. 
349,  52  L.  Ed.  828,^28  Sup.  Ct.  Rep.  529,  14  A.  &  E.  Ann.  Cas.  560. 

Ohio  Oil  Co.  v.  Indiana  was  a  writ  of  error  to  the  Supreme  Court  of 
Indiana  to  review  a  judgment  of  that  court  which  sustained  a  statute 
which  prohibited  any  one  having  the  control  or  possession  of  any  natural 


to  the  time  of  the  commission  of  said 
act  or  said  acts  in  violation  of  this  act; 
and  such  act  or  acts  shall  of  themselves 
work  a  forfeiture  of  any  and  all  rights 
of  any  and  every  kind  and  character 
which  may  be  or  may  have  been  granted 
by  the  state  for  the  transportation  or 
transmission  of  natural  gas  within  this 


state,  and  all  the  property  of  said  cor- 
poration and  all  the  property  at  any 
time  belonging  to  said  corporation,  at 
any  time  used  in  the  construction, 
maintaining,  or  operation  of  said  gas 
pipe  line  or  lines,  shall,  in  due  course 
of  law,  be  forfeited  to  and  be  taken  into 
the    possession   of  the   state  through  its. 


1911]  West  v.  Kansas  Natukal  Gas  Co.  et  al.  193 

gas  or  oil  well  to  permit  the  gas  or  oil  therefrom  to  escape  into  the 
open  air,  and  restrained  the  oil  company  from  violating  the  statute. 
Against  the  statute  was  urged  the  rights  of  property  assured  by  the 
14th  Amendment  of  the  Constitution  of  the  United  States.  The  case 
is  a  valuable  one  and  clearly  announces  the  right  of  an  owner  to  the 
soil  beneath  it,  and  the  relation  of  his  rights  to  all  other  owners  of  the 
surface  of  the  soil.  The  right  of  taking  the  gas,  it  was  said,  was  common 
to  all  owners  of  the  surface,  and  because  of  such  common  right  in  all 
landowners,  an  unlimited  use  (against  a  wasteful  use  the  statute  was 
directed)  by  any  it  was  competent  for  the  state  to  prohibit.  This  limita- 
tion upon  the  surface  owners  of  property  was  justified  by  the  peculiar 
character  of  gas  and  oil,  they  having  the  power  of  self-transmission, 
and  that  therefore  to  preserve  an  equal  right  in  all  surface  owners  there 
could  not  be  an  unlimited  right  in  any.  Gas  and  oil  were  likened  to, 
not  made  identical  with,  animals  ferae  naturae,  and,  like  such  animals 
were  subject  to  appropriation  by  the  owners  of  the  soil,  but  also,  like  them, 
did  not  become  property  until  reduced  to  actual  possession. 

But  an  important  distinction  was  pointed  out.  In  things  ferae  naturae. 
it  was  observed,  all  were  endowed  with  the  power  of  reducing  them  to 
possession  and  exclusive  property.  In  the  case  of  natural  gas,  only  the 
surface  proprietors  had  such  power  and  the  distinction,  it  was  said, 
marked  the  difference  in  the  extent  of  the  state's  control.  "In  the  one, 
as  the  public  are  the  owners,  everyone  may  be  absolutely  prevented  from 
seeking  to  reduce  to  possession.  No  devesting  of  private  property,  un- 
der such  a  condition,  can  be  conceived,  because  the  public  are  the  owners, 
and  the  enactment  by  the  state  of  a  law  as  to  the  public  ownership  is 
but  the  discharge  of  the  governmental  trust  resting  in  the  state  as  to 
property  of  that  character.  Geer  v.  Connecticut,  161  U.  S.  519,  40  L. 
Ed.  793,  16  Sup.  Ct.  Rep.  600.  On  the  other  hand,  as  to  gas  and  oil, 
the  surface  proprietors  within  the  gas  field  all  have  the  right  to  reduce 
to  possession  the  gas  and  oil  beneath.  They  could  not  be  absolutely  de- 
prived of  this  right  which  belongs  to  them  without  a  taking  of  private 
property."  And  this  right,  it  was  further  said,  was  coequal  in  all  of  the 
owners  of  the  surface,  and  that  the  power  of  the  state  could  be  exerted 
"for  the  purpose  of  protecting  all  the  collective  owners,  by  securing  a 
just  distribution,  to  arise  from  the  enjoyment  by  them  of  their  privilege 


proper  officer,  and  in  said  action  there 
shall  be  a  right  to  the  state  of  the  ap- 
pointment of  a  receiver,  either  before  or 
after  the  judgment,  to  be  exercised  at 
the  option  of  the  state,  and  the  officer 
taking  possession  of  said  property  shall 
immediately  disconnect  said  pipe  line  or 
W.   &   M.— 13 


lines  at  a  proper  point  in  this  state 
from  any  pipe  line  or  lines  going  out 
of  or  beyond  the  state.  And  said  prop- 
erty shall  be  sold  as  directed  by  the 
court  having  jurisdiction  of  said  pro- 
ceedings, and  the  proceeds  of  said  sale 
shall  be  applied,  first  to  the  payment  of 


194 


Watee  and  Mineral  Cases.      [United  States 


to  reduce  to  possession,  and  to  reach  the  like  end  by  preventing  waste." 
And  further  characterizing  the  statute,  it  was  said,  viewed  as  one  to 
prevent  the  waste  of  the  common  property  of  the  surface  owners,  it 
protected  their  property,  not  devested  them  of  it.  And  special  em- 
phasis was  given  to  this  conclusion  by  the  comment  that,  to  assert  that 
the  right  of  the  surface  owner  to  take  was,  under  the  14th  Amendment, 
a  right  to  waste,  was  "to  say  that  one  common  owner  may  devest  all  the 
others  of  their  rights  without  wrongdoing;  but  the  lawmaking  power 
cannot  protect  all  the  owners  in  their  enjoyment  without  violating  the 
Constitution  of  the  United  States." 

The  case,  therefore,  is  an  authority  against,  not  in  support  of,  the  con- 
tention of  the  appellant  in  the  case  at  bar. 

The  statute  of  Indiana  was  directed  against  waste  of  the  gas,  and  was 
sustained  because  it  protected  the  use  of  all  the  surface  owners  against 
the  waste  of  any.  The  statute  was  one  of  true  conservation,  securing  the 
rights  of  property,  not  impairing  them.  Its  purpose  was  to  secure  to  the 
common  owners  of  the  gas  a  proportionate  acquisition  of  it— a  reduction 
to  possession  and  property— not  to  take  away  any  right  of  use  or  dis- 
position after  it  had  thus  become  property.  It  was  sustained  because 
such  was  its  purpose;  and  we  said  that  the  surface  owners  of  the  soil, 
owners  of  the  gas  as  well,  could  not  be  deprived  of  the  right  to  reduce 
it  to  possession" without  the  taking  of  private  property.  It  surely  cannot 
need  argument  to  show  that  if  they  could  not  be  deprived  of  the  right  to 
reduce  the  gas  to  possession,  they  could  not  be  deprived  of  any  right 
which  attached  to  it  when  in  possession. 

The  Oklahoma  statute  far  transcends  the  Indiana  statute.  It  does  what 
this  court  took  pains  to  show  that  the  Indiana  statute  did  not  do.  It 
does  not  protect  the  rights  of  all  surface  owners  against  the  abuses  of 
any.  It  does  not  alone  regulate  the  right  of  the  reduction  to  possession 
of  "the  gas,  but,  when  the  right  is  exercised,  when  the  gas  becomes  prop- 
erty, takes  from  it  the  attributes  of  property— the  right  to  dispose  of  it; 
indeed,  selects  its  market,  to  reserve  it  for  future  purchasers  and  use  with- 
in the  state,  on  the  ground  that  the  welfare  of  the  state  will  thereby  be 
subserved.  The  results  of  the  contention  repel  its  acceptance.  Gas  when 
reduced  to  possession,  is  a  commodity ;  it  belongs  to  the  owner  of  the 
land;  and,  when  reduced  to  possession,  is  his  individual  property,  subject 

any  corporation  having  among  its 
stockholders  any  person  who  was  one  of 
the  stockholders  of  said  corporation 
whose  charter  has  or  may  have  been 
forfeited  as  aforesaid,  and  if  any  such 
charter  shall  have  been  granted,  and 
thereafter  a  person  shall  become  a  stock- 


the  cost  of  such  proceeding,  and  the  re- 
mainder, if  any,  paid  into  the  school 
fund  of  the  state,  and  said  charter  un- 
der which  said  act  or  acts  were  com- 
mitted shall  be  revoked,  and  no  charter 
for  the  transportation  or  transmission 
of  natural  gas  shall  ever  be  granted  to 


1911] 


West  v.  Kansas  Natukal  Gas  Co.  et  al. 


195 


to  sale  by  him,  and  may  be  a  subject  of  intrastate  commerce  and  inter- 
state commerce.  The  statute  of  Oklahoma  recognizes  it  to  be  a  subject 
of  intrastate  commerce,  but  seeks  to  prohibit  it  from  being  the  subject  of 
interstate  commerce,  and  this  is  the  purpose  of  its  conservation.  In  other 
words,  the  purpose  of  its  conservation  is  in  a  sense  commercial, — the 
business  welfare  of  the  state,  as  coal  might  be,  or  timber.  Both  of  those 
products  may  be  limited  in  amount,  and  the  same  consideration  of  the 
public  welfare  which  would  confine  gas  to  the  use  of  the  inhabitants  of 
a  state  would  confine  them  to  the  inhabitants  of  the  state.  If  the  states 
have  such  power,  a  singular  situation  might  result.  Pennsylvania  might 
keep  its  coal,  the  Northwest  its  timber,  the  mining  states  their  minerals. 
And  why  may  not  the  products  of  the  field  be  brought  within  the  prin- 
ciple? Thus  enlarged,  or  without  that  enlargement,  its  influence  on  inter- 
state commerce  need  not  be  pointed  out.  To  what  consequences  does  such 
power  tend?  If  one  state  has  it,  all  states  have  it;  embargo  may  be  retali- 
ated by  embargo,  and  commerce  will  be  halted  at  state  lines.  And  yet 
we  have  said  that  "in  matters  of  foreign  and  interstate  commerce  there 
are  no  state  lines."  In  such  commerce,  instead  of  the  states,  a  new  power 
appears  and  a  new  welfare, — a  welfare  which  transcends  that  of  any 
state.  But  rather  let  us  say  it  is  constituted  of  the  welfare  of  all  of  the 
states,  and  that  of  each  state  is  made  the  greater  by  a  division  of  its  re- 
sources, natural  and  created,  with  every  other  state,  and  those  of  every 
other  state  with  it.  This  was  the  purpose,  as  it  is  the  result,  of  the  inter- 
state commerce  clause  of  the  Constitution  of  the  United  States.  If 
there  is  to  be  a  turning  backward,  it  must  be  done  by  the  authority  of 
another  instrumentality  than  a  court. 

The  case  of  State  ex  rel.  Corwin  v.  Indiana  &  O.  Oil,  Gas  &  Min.  Co.. 
120  Ind.  575,  6  L.  R.  A.  579,  2  Inters.  Com.  Rep.  758,  22  N.  E.  778,  is 
pertinent  here.  A  statute  of  Indiana  was  considered  which  made  it 
unlawful  to  pipe  or  conduct  gas  from  any  point  within  the  state  to  any 
point  or  place  without  the  state.  It  was  assailed  on  one  side  as  a  regula- 
tion of  interstate  commerce,  and  therefore  void  under  the  Constitution 
of  the  United  States.  It  was  defended  on  the  other  hand,  as  a  provision 
for  the  exercise  of  the  right  of  eminent  domain,  confining  it  to  those 
engaged  in  state  business,  denying  it  to  those  engaged  in  interstate  busi- 
ness;  and,    further,   as   imposing   restrictions    on    foreign    corporations. 


holder  thereof  who  was  one  of  the 
stockholders  of  the  corporation  whose 
charter  has  been  or  may  have  been  for- 
feited, as  herein  provided,  the  charter 
of  said  corporation,  one  of  whose  stock- 
holders is  as  last  named,  shall  therefore 


be  forfeited  and  revoked.  Provided, 
that  any  person  who  may  be  denied  the 
right  to  become  a  stockholder  as  above 
prescribed  may  be  granted  the  right  to 
become  such  stockholder  by  the  corpora- 
tion    commission,     when     such     person 


196 


Water  and  Mineral  Cases.      [United  States 


It  will  be  observed,  therefore,  the  statute  had,  it  may  be  assumed,  the 
same  inducement  as  the  Oklahoma  statute,  and  the  same  special  justifica- 
tions were  urged  in  its  defense.  The  court  rejected  the  defenses,  and 
decided  that  the  statute  was  not  a  legitimate  exercise  of  the  police  power, 
or  the  regulation  of  the  right  of  eminent  domain  or  of  foreign  corpora- 
tions, but  had  the  purpose  "plainly  and  unmistakably  manifested"  to 
prohibit  transportation  of  natural  gas  beyond  the  limits  of  the  state ;  and 
that,  this  being  its  purpose,  it  was  void  as  a  regulation  of  interstate  com- 
merce. These  propositions  were  announced:  (i)  Natural  gas  is  as 
much  a  commodity  as  iron  ore,  coal,  or  petroleum  or  other  products  of 
the  earth,  and  can  be  transported,  bought,  and  sold  as  other  products. 

(2)  It  is  not  a  commercial  product  when  it  is  in  the  earth,  but  becomes  so 
when  brought  to  the   surface  and   placed   in   pipes   for  transportation. 

(3)  If  it  can  be  kept  within  the  state  after  it  has  become  a  commercial 
product,  so  may  corn,  wheat,  lead,  and  iron.  If  laws  can  be  enacted  to 
prevent  its  transportation,  "a  complete  annihilation  of  interstate  com- 
merce might  result."  And  the  court  concluded :  "We  can  find  no  tenable 
ground  upon  which  the  act  can  be  sustained,  and  we  are  compelled  to 
adjudge  it  invalid."  The  case  was  explicitly  affirmed  in  Manufacturers' 
Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.,  155  Ind.  545,  53  L.  R.  A. 
134,  58  N.  E.  706,  21  Mor.  Min.  Rep.  102. 

The  case  is  valuable  because  the  court,  through  the  same  justice  who 
wrote  the  opinion,  distinguished  between  an  exercise  of  the  police  power 
to  regulate  the  taking  of  natural  gas  and  its  prohibition  in  interstate 
commerce. 

Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.,  128  Ind.  555,  12  L.  R.  A 
652,  3  Inters.  Com.  Rep.  613,  28  N.  E.  76,  sustained  a  statute  which 
prohibited  the  taking  of  gas  under  a  greater  pressure  than  300  pounds 
to  the  square  inch.  The  court  said  that  natural  gas  "is,  on  doubt,  so  far  a 
commercial  commodity  that  this  state  cannot  prohibit  its  transporta- 
tion to  another  state  by  direct  legislation,"  citing  State  ex  rel.  Corwin  v. 
Indiana  &  O.  Oil,  Gas  &  Min.  Co.,  supra.  The  court  said  further :  "If 
it  can  be  taken  from  the  well  and  transported  to  another  state  under  a 
safe  pressure,  the  state  cannot  prohibit  its  transportation,  nor  can  the 
state  establish  one  standard  of  pressure  for  its  own  citizens  and  another 
standard  for  the  citizens  of  other  states."    The  court,  therefore,  discern- 


shows  to  such  commission  that  he  was 
not  a  party  to  the  former  violation  of 
this   act. 

Sec.  9.  No  pipe  lines  for  the  transpor- 
tation or  transmission  of  natural  gas 
shall   be   laid   upon     private     or     public 


property  when  the  purpose  of  such  line 
is  to  transport  or  transmit  gas  for  sale 
to  the  public  until  the  same  is  properly 
inspected  as  provided  in  this  act;  and 
before  any  gas  pipe  line  company  shall 
furnish  or  sell  gas  to  the  pvblic,  it  shall 


1911] 


West  v.  Kansas  Natural  Gas  Co.  et  al. 


197 


ing  in  the  statute  no  discrimination  and  no  prohibition,  but  only  a  regula- 
tion universal  in  its  application,  and  justified  by  the  nature  of  the  gas, 
and  which  allowed  its  transportation  to  other  states,  decided  that  there 
was  no  restriction  or  burden  upon  interstate  commerce. 

Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  ante,  337,  31  Sup. 
Ct.  Rep.  337,  is  to  the  same  effect  as  Ohio  Oil  Co.  v.  Indiana.  Its 
similarity  to  the  latter  case  was  pointed  out.  Indeed,  they  can  be  said  to 
be  identical  in  principle.  In  the  one  case  oil  and  gas,  in  the  other  mineral 
water  and  gas,  were  commingled  beneath  the  surface  of  the  earth,  and 
capable  of  movement  and  common  ownership.  In  the  one  case  the  right 
was  asserted  to  waste  the  gas  to  secure  the  oil,  which  was  the  more  valu- 
able of  the  two;  in  the  other  case  the  right  was  asserted  to  waste  the 
water  to  secure  the  gas,  as  the  more  valuable  of  the  two.  In  both 
teases   there   was   a   statute    forbidding   the   waste.  Speaking   of   the 

purpose  of  the  statute  in  Lindsley  v.  Natural  Carbonic  Gas  Co.  it  was 
said:  "It  is  to  prevent  or  avoid  the  injury  and  waste  suggested  that  the 
statute  was  adopted.  It  is  not  the  first  of  its  type.  One  in  principle 
quite  like  it  was  considered  by  this  court  in  Ohio  Oil  Co.  v.  Indiana,  177 
U.  S.  190,  44  L.  Ed.  729,  20  Sup.  Ct.  Rep.  576,  20  Mor.  Min.  Rep.  466." 
The  statute  was  sustained  upon  the  reasoning  of  that  case. 

Hudson  County  Water  Co.  v.  McCarter  is  urged,  we  have  seen,  on 
our  attention.  A  statute  of  the  State  of  New  Jersey  was  involved,  which 
made  it  unlawful  for  any  person  or  corporation  to  transport  or  carry 
through  pipes  the  waters  of  any  fresh-water  lake,  river,  etc.,  into  any 
other  state,  for  use  therein.  Two  propositions  may  be  said  to  be  the 
foundation  of  the  decision  of  the  court  below  sustaining  the  statute: 
(1)  "The  fresh-water  lakes,  ponds,  brooks,  and  rivers,  and  the  waters 
flowing  therein,  constitute  an  important  part  of  the  natural  advantages 
of"  the  state,  "upon  the  faith  of  which  its  population  has  multiplied  in 
numbers  and  increased  in  material  and  moral  welfare.  The  regulation  of 
the  use  and  disposal  of  such  waters,  therefore,  if  it  be  within  the  powers 
of  the  state,  is  among  the  most  important  objects  of  government."  (2) 
"The  common  law  recognizes  no  right  in  the  riparian  owner,  as  such,  to 
divert  water  from  the  stream  in  order  to  make  merchandise  of  it,  nor 
any  right  to  transport  any  portion  of  the  water  from  the  stream  to  a 
distance  for  the  use  of  others."  [70  N.  J.  Eq.  701,  709,  14  L.  R.  A.  (N.  S.) 


secure  from  the  inspector  a  certificate 
showing  that  said  line  is  laid  and  con- 
structed in  accordance  with  this  act, 
and  under  the  inspection  of  the  proper 
officer;  provided  that  nothing  in  this  act 
shall  be  construed  to  prevent  persons 
drilling  for  oil  and  gas  from  laying  sur- 


face lines  to  transport  or  transmit  gas 
to  wells  which  are  being  drilled  within 
this  state,  and  further  provided,  that 
factories  in  this  state  may  transport  or 
transmit  gas  through  pipe  lines  for  their 
own  use  for  factories  located  wholly 
within    this    state,    upon    securing    the 


198 


Water  and  Mineral  Cases.      [United  States 


197,  118  Am.  St.  Rep.  754,  65  Atl.  489,  10  A.  &  E.  Ann.  Cas.  116.]  It 
was  further  declared  that  the  common  law  authorized  the  acquisition  of 
water  "only  by  riparian  owners,  and  for  purposes  narrowly  limited.  Not 
that  the  ownership  is  common  and  public."  And  the  contention  was  re- 
jected that  the  title  of  the  individual  riparian  owner  was  to  the  water 
itself, — the  fluid  considered  as  a  commodity, — and  exclusive  against  the 
public  and  against  all  persons  excepting  other  riparian  owners. 

It  is  clear  that  neither  of  these  propositions  will  support  the  contentions 
of  the  appellant  in  the  case  at  bar.  Nor  does  any  principle  announced 
upon  the  review  of  the  case  here,  though  the  power  of  the  state  to  enact 
the  statute  was  put  "upon  a  broader  ground  than  that  which  was  empha- 
sized below."  The  police  power  of  the  state  was  discussed  and  the 
difficulty  expressed  of  fixing  "boundary  stones  between"  it  and  the 
right  of  private  property  which  was  asserted  in  the  case.  There  were 
few  decisions,  it  was  said,  that  were  very  much  in  point.  But  certain 
principles  were  expressed,  of  which  Geer  v.  Connecticut,  161  U.  S.  519, 
40  L.  Ed.  793,  16  Sup.  Ct.  Rep.  600,  was  considered  as  furnishing  an 
illustration,  and  Kansas  v.  Colorado,  185  U.  S.  125,  46  L.  Ed.  838,  22  Sup. 
Ct.  Rep.  552,  and  Georgia  v.  Tennessee  Copper  Co.,  206  U.  S.  230,  51  L. 
Ed.  1038,  27  Sup.  Ct.  Rep.  618,  11  A.  &  E.  Ann.  Cas.  488.  some  sugges- 
tions. 

That  principle  was  the  "interest  of  the  public  of  a  state  to  main- 
tain the  rivers  that  are  wholly  within  it  substantially  undiminished,  except 
by  such  drafts  upon  them  as  the  guardian  of  the  public  welfare  may  per- 
mit for  the  purpose  of  turning  them  to  a  more  perfect  use."  And  this 
principle  was  emphasized  as  the  one  determining  the  case,  and  the 
opinion  expressed  that  it  was  "quite  beyond  any  rational  view  of  riparian 
rights  that  an  agreement  of  no  matter  what  private  owners  could  sanc- 
tion the  diversion  of  an  important  stream  outside  the  boundaries  of  the 
state  in  which  it  flows.  The  private  right  to  appropriate  is  subject  not 
only  to  the  rights  of  lower  owners,  but  to  the  initial  limitation  that  it 
may  not  substantially  diminish  one  of  the  great  foundations  of  public  wel- 
fare and  health." 

It  is  hardly  necessary  to  say  that  there  was  no  purpose  in  the  case  to 
take  from  property  its  uses  and  commercial  rights,  or  to  assimilate  a  flow- 
ing river  and  the  welfare  which  was  interested  in  its  preservation  to  the 
regulation  of  gas  wells,  or  to  take  from  the  gas  when  reduced  to  pos- 


right  of  way  from  the  state  over  or 
along  the  highways  and  from  property 
owners  to  their  lands. 

See.  10.  That  no  person,  firm,  or  as- 
sociation or  corporation  shall  ever  be 
permitted  to  transmit  or  transport  nat- 


ural gas  by  pipe  lines  in  this  state,  or 
in  this  state  construct  or  operate  a  pipe 
line  for  the  transmission  of  natural  gas, 
except  such  persons,  firms,  association*, 
or  corporations  be  incorporated  as  in 
this   act  provided,  except  as   in   §   9   of 


1911] 


AVest  v.  Kansas  Natural  Gas  Co.  et  al. 


199 


session  the  attributes  of  property  decided  to  belong  to  it  in  Ohio  Oil  Co. 
v  Indiana,  and  recognized  in  Lindsley  v.  Natural  Carbonic  Gas  Co. 
Indeed,  pains  were  taken  to  put  out  of  consideration  a  material  measure 
of  the  benefits  of  a  great  river  to  a  state.  And  surely  we  need  not  pause 
to  point  out  the  difference  between  such  a  river,  flowing  upon  the  suface 
of  the  earth,  and  such  a  substance  as  gas,  seeping  invisible  through  sands 

beneath  the  surface. 

We  have  reviewed  the  cases  at  some  length,  as  they  demonstrate  the 
unsoundness  of  the  contention  of  appellant  based  upon  the  right  to  con- 
serve (we  use  this  word  in  the  sense  appellant  uses  it)  the  resources  of 
the  state,  and  that  the  statute  finds  no  justification  in  such  purpose  for 
its   interference  with   private   property  or  its   restraint  upon   interstate 
commerce.     At  this  late  dav  it  is  not  necessary  to  cite  cases  to  show  that 
the  right  to  engage  in  interstate  commerce  is  not  the  gift  of  a  slate,  and 
that  it*  cannot  be  regulated  or  restrained  by  a  state,  or  that  a  state  cannot 
exclude  from  its  limits  a  corporation  engaged  in  such  commerce.     To 
attain  these  unauthorized  ends  is  the  purpose  of  the  Oklahoma  statute. 
The  state,  through  the  statute,  seeks  in  every  way  to  accomplish  these 
ends    and 'all  the  powers  that  a  state  is  conceived  to  possess  are  exerted 
and  all  the  limitations  upon  such  powers  are  attempted  to  be  circum- 
vented     Corporate  persons   are   more   subject  to  control   than   natural 
persons      The  business  is  therefore  confined  to  the  former,  and  foreign 
corporations  are  excluded  from  the  state.     Lest  they  might  enter  by  the 
superior  power  of  the  Constitution  of  the  United  States,  the  use  of  the 
highways  is  forbidden  to  them  and  the  right  of  eminent  domain  is  withheld 
from  them,  and  the  prohibitive  strength  which  these  provisions  are  sup- 
posed to  carrv  is  exhibited  in  the  fact  that  the  boundary  of  the  state  is 
a  highway     If  it  cannot  be  passed  without  the  consent  of  the  state,  com- 
merce to  and  from  the  state  is  impossible.    The  situation  is  not  underesti- 
mated by  appellant,  and  he  says:    "If  the  appellees  had  the  right  of  way 
they  might  engage  in  interstate  commerce,  but  their  desire  to  engage  in 
interstate  commerce  is  a  different  thing  from  the  means  open  to  them  to 
procure  a  right  of  way."    And  it  is  further  said,  that  "the  confusion  of 
the  right  to  engage  in  interstate  commerce  with  the  power  to  forcibly  se- 
cure a  right  of  way  is  the  basis  of  appellees'  case." 


this  act,  and  provided  further  that  all 
persons,  firms,  corporations,  associa- 
tions, and  institutions  now  doing  the 
business  of  transportation  or  transmis- 
sion [of]  natural  gas  in  this  state  and 
otherwise  complying  with  this  act  are 
hereby    permitted    to   incorporate    under 


the  provisions  of  this  act  within  ten 
days  after  the  passage  and  approval  of 
the   same. 

Sec.  11.  All  acts  and  parts  of  acts  in 
conflict  with  this  act  are  hereby  re- 
pealed. 

Sec.     12.  An     existing     emergency    is 


200 


Water  and  Mineral  Cases.       [United  States 


There  is  here  and  there  a  suggestion  that  the  state  not  having  granted 
such  right,  the  alternative  is  a  grant  of  it  by  congress.  But  this  over- 
looks the  affirmative  force  of  the  interstate  commerce  clause  of  the  Con- 
stitution. The  inaction  of  congress  is  a  declaration  of  freedom  from 
state  interference  with  the  transportation  of  articles  of  legitimate  inter- 
state commerce,  and  this  has  been  the  answer  of  the  courts  to  conten- 
tions like  those  made  in  the  case  at  bar.  State  ex  rel.  Corwin  v.  Indiana 
&  O.  Oil,  Gas  &  Min.  Co.,  120  Ind.  575,  6  L.  R.  A.  579,  2  Inters.  Com.  Rep. 
758,  22  N.  E.  778;  Benedict  v.  Columbus  Constr.  Co.,  49  N.  J.  Eq.  23,  23 
Atl.  485,  and  also  in  Haskell  v.  Cowham  [April  7,  191 1],  United  States 
Circuit  Court  of  Appeals,  Eighth  Circuit.  In  the  latter  case  the  Oklahoma 
statute  was  under  review,  and  in  response  to  the  same  contentions  which 
are  here  presented,  these  propositions  were  announced,  with  citation  of 
cases : 

"No  state  by  the  exercise  of,  or  by  the  refusal  to  exercise,  any  or  all  of 
its  powers,  may  prevent  or  unreasonably  burden  interstate  commerce 
within  its  borders  in  any  sound  article  thereof. 

"No  state  by  the  exercise  of,  or  by  the  refusal  to  exercise,  any  or  all 
of  its  powers,  may  substantially  discriminate  against  or  directly  regulate 
interstate  commerce  or  the  right  to  carry  it  on." 

The  power  of  the  State  of  Oklahoma  over  highways  is  much  discussed 
by  appellant  and  appellees;  the  appellant  contending  for  a  power  practi- 
cally absolute,  as  exercised  under  the  statute,  making  the  highways  im- 
passable barriers  to  the  pipe  lines  of  appellees.  The  appellees  contend 
for  a  more  modified  and  limited  right  in  the  state,  one  not  extending  be- 
yond an  easement  of  public  passage,  subject,  therefore,  to  certain  rights 
in  the  abutting  owners,  which  rights  can  be  transferred,  and  further 
contend  that  even  if  the  power  of  the  state  be  not  so  limited,  it  cannot 
be  exercised  to  discriminate  against  interstate  commerce. 

The  rights  of  abutting  owners  we  will  not  discuss,  nor  the  rights  de- 
rived from  them  by  appellees,  except  to  say  that  whatever  rights  they 
had,  they  conveyed  to  appellees,  and  against  them  there  is  no  necessity 
of  resorting  to  the  exercise  of  eminent  domain.  We  place  our  decision  on 
the  character  and  purpose  of  the  Oklahoma  statute.  The  state,  as  we  have 
seen,  grants  the  use  of  the  highways  to  domestic  corporations  engaged  in 
intrastate  transportation  of  natural  gas,  giving  such  corporations  even 
the  right  to  the  longitudinal  use  of  the  highways.  It  denies  to  appellees 
the  lesser  right  to  pass  under  them  or  over  them,  notwithstanding  it  is 


hereby  declared  by  the  legislature  for 
the  preservation  of  the  public  peace, 
health,  and  safety  of  the  state. 

Sec.    13.     This    act    shall    take    effect 


from  and  after  its  passage  and  approval, 
as  provided  by  law. 

Approved  December  21,   1907. 


1911] 


"West  v.  Kansas  Natural  Gas  Co.  et  al,. 


201 


conceded  in  the  pleadings  that  the  greater  use  given  to  domestic  corpora- 
tions is  no  obstruction  to  them.  This  discrimination  is  beyond  the 
power  of  the  state  to  make.  As  said  by  the  circuit  court  of  appeals  in 
the  eighth  circuit,  no  state  can  by  action  or  inaction  prevent,  unreasonably 
burden,  discriminate  against,  or  directly  regulate,  interstate  commerce 
or  the  right  to  carry  it  on.  And  in  all  of  these  inhibited  particulars  the 
statute  of  Oklahoma  offends. 

And  we  repeat  again,  there  is  no  question  in  the  case  of  the  regulating 
power  of  the  state  over  the  natural  gas  within  its  borders.  The  appellees 
concede  the  power,  and,  replying  to  the  argument  of  appellant  based  on 
the  intention  of  appellees  to  erect  large  pumps  to  increase  the  natural  rock 
pressure  of  the  gas,  appellees  say :  "Kansas  by  legislative  enactment  for- 
bids the  use  of  artificial  apparatus  to  increase  the  natural  flow  from  gas 
wells.  Chapter  312,  Laws  of  Kansas,  1909,  p.  520.  To  this  act  the 
Kansas  Natural  Gas  Company  has  no  objection." 

Decree  affirmed. 

Mr.  Justice  HOLMES,  Mr.  Justice  LURTON,  and  Mr.  Justice 
HUGHES  dissent. 


NOTE. 

On  the  power  of  a  state  to  regulate 
the  transportation  of  natural  gas  from 
the  state,  see  notes  to  Ohio  Oil  Co.  v. 
Indiana,  20  Mor.  Min.  Rep.  4G6,  and 
Manufacturers  Gas  &  Oil  Company  et  al. 


v.  Indiana  Natural  Gas  &  Oil  Company, 
21  Mor.  Min.  Rep  102.  As  to  the 
police  power  of  the  state  to  prevent 
waste  of  gas  and  oil,  see  Freund,  Police 
Power,    §    422. 


202 


Water  and  Mineral  Cases.       [United  States 


NOME  &  SINOOK  CO.  v.  SNYDER. 
[Circuit  Court  of  Appeals,  Ninth  Circuit,  May  22,  1911.] 

187  Fed.  385. 

1.  Mines — Placer   Location — Number  of   Locators. 

Five  persons  may,  by  means  of  proper  association,  make  valid  location  of  one 
hundred  acres  in  one  placer  claim,  but  only  where  each  acquires  an  interest  not  to 
exceed  twenty  acres. 

2.  Same — Invalid    Location. 

A  placer  location  of  one  hundred  acres,  made  by  an  association  of  five  persons 
under  an  agreement  whereby  two  of  the  parties  were  to  receive  only  nominal  inter- 
ests and  the  others  in  unequal  shares,  is  held  void,  and  the  ground  declared  un- 
appropriated mineral  land  subject  to  location  by  others. 

In  Error  to  the  District  Court  of  the  United  States  for  the  Second 
Division  of  the  District  of  Alaska. 

Ejectment  by  William  Snyder  against  the  Nome  &  Sinook  Company, 
Judgment  for  plaintiff.     Defendant  brings  error.     Affirmed. 

For  plaintiff  in  error — F.  E.  Fuller,  O.  D.  Cochran,  W.  A.  Gilmore, 
Metson,  Drew  &  Mackenzie  and  E.  H.  Ryan. 

For  defendant  in  error — James  W.  Bell. 

On  or  about  June  22,  1909,  the  defendant  filed  an  application  in  the 
United  States  land  office  at  Nome,  Alaska,  for  patent  to  mining  premises 
known  as  the  "Snyder  Group  No.  3,"  designated  as  "Survey  No.  739," 
and  comprising  the  Maybel,  Loyal  Fraction,  Snyder,  and  Troy  Bench 
Fraction  claims.  To  this  application  the  plaintiff  filed  an  adverse,  and  in 
due  time  commenced  this  action  in  ejectment  to  determine  its  alleged 
superior  and  paramount  right  to  the  premises.  The  plaintiff  alleges  that 
it  is  now,  and  ever  since  the  24th  day  of  June,  1899,  it  and  its  predeces- 
sors have  been,  the  owners,  seised  of  the  legal  estate  in  fee  and  entitled  to 
the  possession  of  certain  mining  premises,  consisting  of  "that  certain 
mining  claim  commonly  known  as  and  called  the  Pocahontas,  Querropas, 
Ratapan,  Seneca,  Ticonderoga  (also  called  the  Pocahontas),"  bounded 
as  in  the  complaint  described.  The  complaint  then  sets  forth  in  effect 
that  prior  to  the  date  last  named  the  premises  were  vacant,  unoccupied, 
and  unappropriated  public  mineral  lands ;  that  on  or  about  said  date 


NOTE. 
Excessive    location   of   mining    claims, 


see    note    to    Zimmerman    v.    Funchion, 
post,  p.  437. 


1911]  Nome  &  Sinook  Co.  v.  Snyder.  203 

William  A.  Kjellmann,  Amaso  Spring,  Jr.,  Arthur  E.  Southward,  Jafet 
Lindeberg,  and  Alex  Jernes  associated  themselves  together  under  the  firm 
name  of  Nome  Mining  &  Development  Company,  Limited,  and,  being 
qualified  to  locate,  appropriate,  and  hold  mining  claims,  "entered  upon 
said  premises  and  duly  located  and  appropriated  the  same  as  a  placer  min- 
ing claim" ;  that  they  made  discovery  of  gold-bearing  mineral  within  the 
limits,  marked  the  boundaries,  and  on  February  27,  1899,  caused  to  be 
recorded  a  notice  of  location  of  said  claim;  that  thereafter  by  sundry 
mesne  conveyances  the  plaintiff  became  the  purchaser  and  owner,  and  dur- 
ing each  year  since  the  date  of  location  plaintiff  and  its  grantors  have  per- 
formed labor  and  improvements  of  not  less  than  $100  for  the  benefit  and 
development  thereof.  Further  than  this,  appropriate  facts  are  set  forth 
showing  that  the  action  is  properly  instituted  in  support  of  plaintiff's  ad- 
verse claim  to  defendant's  application  for  a  patent.  The  defendant 
answered,  and  the  cause  went  to  trial  before  a  jury.  At  the  close  of 
plaintiff's  evidence  a  nonsuit  was  granted  upon  the  motion  of  the  defend- 
ant.   This  appeal  is  from  the  action  of  the  court  in  that  regard. 

WOLVERTON,  District  Judge  (after  stating  the  facts  as  above). 
It  is  shown  by  the  testimony  of  Jafet  Lindeberg  that  he,  together  with 
Kjellmann,  Spring,  Southward,  and  Jernes,  formed  a  partnership  called 
the  "Nome  Mining  &  Development  Company,  Limited,  to  get  mining 
claims  around  the  vicinity  of  Nome,  Penny  River,  and  outside  of  that," 
and  that  the  claim  sought  to  be  established  by  plaintiff  is  one  of  the 
claims  located  by  this  partnership.  The  notice  shows  that  the  "under- 
signed" have  located  100  acres  of  placer  mining  ground  described  as 
Pocahontas,  Ouerropas,  Ratapan,  Seneca,  and  Ticonderoga.  Then  fol- 
lows a  description  which  runs  around  all  the  claims.  The  conclud- 
ing part  of  the  notice  is  as  follows : 

"Located  24th  day  of  January,  A.  D.  1899,  by  Nome  Mining  &  Devel- 
opment Co.,  Ltd.,  Amasa  Spring,  Jr.,  General  Manager." 

Attached  to  the  notice  is  a  plat  showing  the  Ticonderoga  on  the  west, 
next  east  the  Seneca,  and  east  of  that  the  Ratapan,  all  in  square  form. 
The  Ouerropas,  is  still  east  of  the  latter,  in  rectangular  form,  Each 
of  these  are  described  as  containing  20  acres.  East  of  the  Querropas, 
along  its  northern  extremity,  is  located  lot  2,  and  north  of  that  lot  1, 
each  of  which  contains  10  acres  and  is  designated  the  Pocahontas,  all 
containing  100  acres.  E.  Wallace  Smith,  who  was  the  agent  of  the  com- 
pany and  was  left  in  charge  after  the  alleged  location  was  made,  testified 
that  the  locations  were  not  made  out  as  individual  locations,  nor  was 
each  location  made  separate,  but  were  made  in  a  group. 

Generally,  it  may  be  said  the  proof  shows  that  there  was  a  mark- 
ing of  this  claim  at  the  time  so  that  it  could  be  readily  traced  upon  the 
ground.         Some  of  the  stakes,   however,   were   planted   in   snow  and 


204  Water  and  Mineral  Cases.       [United  States 

others  in  ice  upon  a  stream.  Later,  in  1907,  one  Gibson,  made  a  survey 
of  the  claim,  retracing  quite  closely  the  boundary  of  the  original  loca- 
tion, identifying  a  number  of  the  original  stakes,  but  by  no  means  all 
of  them.  This  witness  relates  that  he  panned  out  quite  a  lot  of  gold 
in  the  spring  of  1899  at  the  mouth  of  Center  Creek.  It  does  not  ap- 
pear upon  what  part  of  the  claim  this  panning  was  done.  Indeed,  it 
is  only  by  inference  that  we  may  know  that  it  was  done  on  the  claim 
at  all.  Lindeberg  says  that  he  discovered  gold  on  the  claim  in  1899, 
and  panned  out  some  in  1898,  and  that  some  leases  were  given  to 
people  to  rock  on  the  claim  on  both  sides  of  Snake  River,  and  especially 
in  a  little  gully  running  through  Pocahontas  No.  2,  and  that  some 
"Laps"  had  a  privilege  of  mining  down  below  Pocahontas  No.  1,  who 
reported  a  great  find  in  the  gulch  in  1899.  This  is  as  near  as  the  evi- 
dence discloses  the  location  of  the  discovery  of  any  gold  or  other 
minerals  on  the  claim  anywhere.  No  evidence  was  offered  to  show 
that  assessment  work  had  been  done  upon  the  claim  at  any  time  sub- 
sequent to  its  location,  or  that  any  mining  was  done  thereon  since  by 
plaintiff  or  its  predecessors. 

The  location  of  defendant's  group  of  claims  was  made  on  and  sub- 
sequent to  July  7,  1900. 

The  principal  ground  upon  which  the  nonsuit  was  granted  is  that 
the  alleged  location  by  the  Nome  Mining  &  Development  Company, 
Limited,  was  void  because  it  was  made  in  pursuance  of  a  scheme  by 
which  one  person  would  acquire  more  area  than  is  allowed  by  law 
under  one  location,  and  therefore  a  fraud  upon  the  government. 

The  strong  contention  of  the  plaintiff  is  that  by  showing  discovery 
and  location  it  made  a  prima  facie  case  which  ought  to  have  been  sub- 
mitted to  the  jury.  This  would  be  true,  waiving  mention  of  the  as- 
sessment work;  but  there  must  be  a  valid  location.  Of  this  we  will 
inquire. 

The  plaintiff  corporation  is  the  successor  to  the  Nome  Mining  & 
Development  Company,  Limited,  by  mesne  conveyances,  and  claims 
under  it  and  by  virtue  of  the  location  that  it  made.  The  agreement 
by  which  the  locating  company  was  formed  is  before  the  court.  It 
evidences  a  joint-stock  company,  formed  by  Kjellmann,  Spring,  South- 
ward, Lindeberg,  and  Jernes;  the  stock  consisting  of  4,000  shares,  of 
which  Kjellmann  was  entitled  to  2,050,  Spring  1,334,  Southward,  614, 
Lindeberg  1,  and  Jernes  1,  the  object  being  to  mine  and  develop  the 
Cape  Nome  mining  district,  Alaska.  There  was  no  incorporation  of 
the  company;  the  agreement  alone  forming  the  association.  Now, 
this  company  as  a  company,  not  by  the  members  in  their  individual 
capacity,  made  one  location  of  100  acres;  for  the  notice  so  states,  and 
the  evidence  is  in  confirmation  thereof.     Under  the  law  an  individual 


1911]  Nome  &  Sinook  Co.  v.  Snyder.  205 

cannot  acquire  more  than  20  acres  of  mining  ground  by  one  location ; 
but  an  association  of  persons  may  make  joint  location  of  not  to  ex- 
ceed 160  acres. 

Section  2330  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  1432^ 
provides  that : 

"Legal  subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre 
tracts;  and  two  or  more  persons,  or  associations  of  persons,  having  con- 
tiguous claims  of  any  size,  although  such  claims  may  be  less  than  ten  acres 
each,  may  make  joint  entry  thereof;  but  no  location  of  a  placer  claim, 
made  after  the  ninth  day  of  July,  eighteen  hundred  and  seventy,  shall 
exceed  one  hundred  and  sixty  acres  for  any  one  person,  or  association 
of  persons,  which  location  shall  conform  to  the  United  States  surveys." 

And  section  2331    (page  1432)  : 

<<*  *  *  \\\  piacer  mining  claims  located  after  the  tenth  day  of 
May,  eighteen  hundred  and  seventy-two,  shall  conform  as  near  as 
practicable  with  the  United  States  system  of  public  land  surveys,  and 
the  rectangular  subdivisions  of  such  surveys,  and  no  such  location  shall 
include  more  than  twenty  acres  for  each  individual  claimant." 

We  are  to  inquire  how  and  in  what  manner  the  association  of  per- 
sons may  make  location  of  more  than  20  acres.  In  analyzing  these 
statutes,  Mr.  Lindley  observes  that  the  unit  or  individual  location  is 
20  acres,  and  that  not  more  than  160  acres  may  be  embraced  within 
one  location  by  an  association  of  persons,  of  which  there  must  be  at 
least  eight.  Lindley  on  Mines,  §  448,  p.  790.  The  Supreme  Court 
of  Colorado  entertains  a  like  view,  for  it  says  in  Kirk  et  al.  v.  Mel- 
drum,  28  Colo.  453,  460,  65  Pac.  633,  636: 

"The  construction  of  the  act  of  congress  with  respect  to  placers  has 
universally  been  that  the  act  makes  provision  for  such  locations,  and 
prescribes  the  area  which  may  be  located ;  in  other  words,  the  area  is 
limited  to  20  acres  to  each  locator,  and  that  a  number  of  individuals  may 
locate  a  claim  in  common,  not  exceeding  20  acres  to  each  person,  and  not 
exceeding  160  acres  in  any  one  claim." 

The  Land  Department,  by  a  published  regulation,  has  so  construed 
section  2331 : 

"That  from  and  after  May  10,  1872,  no  location  made  by  an  individual 
can  exceed  20  acres,  and  no  location  made  by  an  association  of  individuals 
can  exceed  160  acres,  which  location  of  160  acres  cannot  be  made  by  a 
less  number  than  eight  bona  fide  locators." 

So  it  is  said  in  Morrison's  Mining  Rights  (13th  Ed.)  215: 

"It  requires  eight  bona  fide  locators  to  lawfully  claim  160  acres." 

See,  also,  Cost'gan  on  Mining  Law,   173. 

This  court,  speaking  through  Morrow,  Circuit  Judge,  has  given  its 
sanction  to  such  interpretation  in  Cook  v.  Klonos,  164  Fed.  529,  537, 
90  C.  C.  A.  403,  411,  in  language  both  pointed  and  explicit  as  follows: 

"The  prohibition  contained  in  section  2331  against  the  location  of 
'more  than  twenty  acres  for  each  individual  claimant'  is  direct  and  posi- 


206  Water  and  Mineral  Cases.       [United  States 

tive,  and  limits  the  amount  of  ground  that  any  one  claimant  may  appro- 
priate, either  individually  or  in  association  claim,  at  the  time  of  the 
location." 

It  follows,  therefore,  with  exact  logic,  that  five  persons  may  by 
means  of  proper  association  make  valid  location  of  ioo  acres  in  one 
claim,  so  that  it  did  not  include  more  than  20  acres  to  each  individual. 
This  does  not  mean  that  while  the  five  may,  by  associating  themselves 
together,  locate  100  acres  in  one  claim,  one  or  two  of  the  five  can 
acquire  by  such  location  substantially  all  of  the  claim,  leaving  the 
others  with  proportionately  a  very  small  or  nominal  interest  therein, 
but  that  each  must  acquire  an  interest  not  to  exceed  20  acres. 

Any  scheme  or  device  entered  into  whereby  one  individual  is  to 
acquire  more  than  that  amount  or  proportion  in  area  constitutes  a 
fraud  upon  the  law,  and  consequently  a  fraud  upon  the  government, 
from  which  the  title  is  to  be  acquired,  and  any  location  made  in  pur- 
suance of  such  scheme  or  device  is  without  legal  support  and  void, 
The  proposition  seems  to  be  well  established.  Mitchell  v.  Cline,  84  Cal. 
409,  24  Pac.  164;  Gird  v.  California  Oil  Co.  (C.  C),  60  Fed.  532; 
Durant  v.  Corbin  (C.  C),  94  Fed.  382;  Cook  v.  Klonos,  supra. 
In  the  latter  case  the  court  says  on  this  subject: 

"The  scheme  of  using  the  names  of  dummy  locators  in  making  the 
location  of  a  mining  claim  for  the  purpose  of  securing  a  concealed  interest 
in  such  claim  appears  to  be  contrary  to  the  purpose  of  the  statute;  but 
when  this  scheme  is  used  to  secure  an  interest  in  a  claim  for  a  single 
individual,  not  only  concealed,  but  in  excess  of  the  limit  of  20^  acres, 
it  is  plainly  in  violation  of  the  letter  of  the  law,  and  when,  as  in  this 
case,  all  the  locators  had  knowledge  of  the  concealed  interest  and  were 
parties  to  the  transaction,  it  renders  the  location  void." 

Now,  in  the  case  under  review,  the  very  articles  of  agreement  put 
the  claimant  beyond  the  pale  of  the  law,  while  the  testimony  establishes 
the  illegality  of  the  scheme  beyond  peradventure.  The  location,  although 
made  in  the  name  of  the  association,  two  of  the  parties  thereto 
were  to  have  but  a  nominal  interest  in  the  claim,  one  less  than  one- 
fifth,  one  largely  more  than  one-fifth,  and  one  more  than  one-half,  giv- 
ing the  latter,  of  course,  more  than  50  acres  proportionately  in  the 
claim.  So  that,  regardless  of  the  discovery,  regardless  of  the  marking 
on  the  ground,  or  even  the  assessment  work,  the  claim  was  void,  and 
could  not  avail  the  locators  in  any  stage.  The  location  being  void,  the 
ground  remained  as  if  none  had  been  made,  and  was  unappropriated 
mineral  land,  subject  to  location  by  others.  This  is  sufficient  to  dis- 
pose of  the  controversy,  without  passing  specifically  on  the  effect  of 
failure  to  prove  that  the  assessment  had  been  regularly  done,  or  other 
points  made  in  the  brief  of  counsel. 

The  judgment  of  the  trial  court  will  be  affirmed. 


1910] 


Caenes  v.  Dalton. 


207 


CAKNES  v   DALTOff. 
[Supreme  Court  of  Oregon,  June  14,  1910;  on  petition  for  rehearing,  July  12,  1910.] 

—  Or.  — ,  110  Pac.  170. 

1.  Waters   and    Water   Courses — Appropriation — Use   of    Less    Water   than 

Entitled  to. 

If  one  co-owner  elects  to  take  less  than  the  quantity  of  water  to  which  he  is 
entitled,  one  who  has  the  right  to  use  the  ditch  to  convey  waters  in  excess  of  the 
quantity  to  which  the  owners  thereof  are  entitled  is  not  in  a  position  to  complain. 

2.  Judgments — Decree  Affects  Parties  Only. 

Decree  in  action  to  determine  interests  in  ditch  affects  only  parties  to  that  action, 
and   owners   of   other   interests   are   not   bound   thereby. 

3.  Waters  and    Water  Courses — Use  of   Ditch — Right   of    Parties. 

One  entitled  to  use  ditch  only  for  purpose  of  conveying  surface  waters  has  no 
right  to  occasion  injury  to  owners  of  ditch. 

4.  Same — Surplus  Waters. 

Owners  of  ditch  are  under  no  obligation  to  see  there  is  water  in  canal  to  supply 
one  whose  right  is  only  to  use  ditch  to  convey  surplus  waters. 

5.  Same — Cotenants — Liability  for    Maintenance. 

Each  of  several  tenants  in  common  of  an  irrigation  ditch  and  dam  is  responsible 
in  proportion  to  his  interest  therein  for  the  maintenance  and  repair  of  the  ditch, 
and  in  case  of  default  of  one  or  more  the  other  has  the  right  to  make  such  repairs, 
for  which  the  defaulting  party  becomes  liable  for  his  pro  rata.  But  such  failure 
does  not  justify  a  third  party  in  making  up  the  loss  occasioned  by  the  default  by 
drawing  off  the  water  of  the  former. 

6.  Same — Cotenants  of   Ditch — One   May  Sue  for  Injury. 

One  of  the  co-owners  of  a  company  ditch  has  a  right  of  action  against  one  having 
the  right  to  use  the  ditch  for  conveying  surplus  waters,  who  causes  a  depletion  of 
the  waters  to  the  injury  of  such  co-owner. 


CASE    NOTE. 

Joinder  of  Parties  in  Action  for 
Diversion  of  Water,  Injury  to 
Ditch,  etc. 

I.     In  General,     207. 

A.  All  Parties  in  Interest 

or  Affected  by  Judg- 
ment, 207. 

B.  Parties  Having  No  In- 

terest, 208. 

C.  Not  All  Riparian  Own- 

ers, 209. 

D.  Higher    Appropriators, 

209. 

E.  Intermediate    Owners, 

209. 

F.  Immaterial       if     Party 

Plaintiff      or        De- 
fendant, 209. 


II.     Owners  in  Severalty,  209. 

III.  Tenants  in  Common,  211. 

IV.  Beneficial  Owners,  212. 

V.     Necessity     of     Possession, 
213. 

VI.  Landlord  and  Tenant,  214. 

VII.  Joint  Tort  Feasors,  215. 

VIII.  Several  Tort  Feasors,  216. 

IX.  Licensee  of  Defendant,  217. 

X.  Statutory  Actions,  218. 

I.      In  General. 

A.      All    Parties   in    Interest  or  Af- 
fected  by  Judgment. 
Any     person     whose     rights     may    be 
affected  by  an  adjudication  of  priorities 


208 


Watek  and  Mineral  Cases. 


[Oregon 


7.  Parties — Necessary   in   Action  for   Damages  to    Ditch. 

In  action  by  one  co-owner  of  an  irrigation  ditch  against  a  party  diverting  certain 
waters  therefrom  to  his  injury,  the  other  co-owner  is  not  a  necessary  party  where 
there  is  no  dispute  as  to  the  rights  of  the  co-owners. 

8.  Same — Tenants  in  Common  of  Ditch — One   May  Sue  for  Injury. 

One  tenant  in  common  of  a  ditch  or  water  right  may  institute  a  suit  for  unlawful 
interference  therein  by  another  tenant. 

9.  Waters  and   Water  Courses — Action   to   Determine  Adverse  Claims. 
Where  defendant  insists  upon  the  right  to  deplete  the  flow  of  water  in  a  ditch  and 

that  his  rights  therein  be  adjudicated,  an  action  is  maintainable  under  B.  &  C. 
Comp.,  §  394,  authorizing  one  claiming  an  interest  adverse  to  plaintiff  to  be  made 
a  defendant. 

Action  to  enjoin  interference  with  diversion  of  water  from  a  ditch  or 
canal  known  as  a  company  ditch.  Judgment  for  defendant.  Reversed 
and  remanded. 

This  is  a  suit  to  enjoin  defendant  from  interfering  with  the  diversion 
of  water  by  plaintiffs  from  a  company  ditch,  leading  from  North  Powder 
River  in  Baker  County.  This  ditch  or  canal,  known  as  the  "company 
ditch,"  is  about  one-half  mile  in  length  from  its  source  to  the  division 
boxes,  one  of  which,  known  as  the  "Kelsey  tap,"  conveys  water  to  plain- 
tiffs' premises,  being  used  by  them  as  tenants  in  common  with  Kelsey. 
The  other,  known  as  the  "Dalton  tap,"  carries  water  claimed  by  defend- 
ant, being  owned  by  him  in  company  with  McPhee  and  others.  The 
company  ditch,  to  the  point  of  distribution,  is  about  8  feet  wide,  and 
when  used  to  its  full  capacity  the  water  flowing  therein  is  from  12  to  18 
inches  in  depth.  It  is  claimed,  and  the  trial  court  finds,  that  the  canal 
carries  about  2200  inches  of  water.  Its  exact  carrying  capacity  is  im- 
material, however,  the  quantity  of  water  not  being  particularly  involved, 
for  it  is  admitted  by  the  pleadings    and  unquestioned  in  the  evidence, 


is  entitled  to  be  made  a  party  in  an  ac- 
tion to  adjudge  priorities.  Nichols  v. 
Mcintosh,  19  Colo.  22,  32  Pac.  278 
(1893). 

In  an  action  by  certain  water  con- 
sumers to  have  the  rights  of  all  con- 
sumers determined,  all  the  consumers  in- 
terested must  be  made  parties  or  their 
rights  cannot  be  determined.  O'Neil  v. 
Ft.  Lyon  Canal  Co.,  39  Colo.  4S9,  90  Pac. 
849  (1907). 

In  action  for  the  diversion  of  water, 
all  parties  interested  in  the  relief  de- 
manded and  whose  rights  will  be  affected 
by  the  judgment,  may  be  joined  as  plain- 
tiffs, and  the  same  rule  applies  to  de- 
fendants.    Hough  v.  Porter,  51  Or.  318, 


95  Pac.  732,  98  Pac.  1083,  102  Pac.  728 
(1909). 

All  parties  who  claim  adversely  to  the 
plaintiff  or  who  are  necessary  to  a  com- 
plete determination  of  the  controversy 
are  proper  parties  defendant,  although 
the  plaintiff  may  not  have  been  injured 
by  them.  Whited  v  Corwin  (Or.),  105 
Pac.  396  (1909). 

B.      Parties  Having  No  Interest. 

One  having  no  interest  in  the  owner- 
ship of  water  is  neither  a  proper  or  neces- 
sary party  in  action  to  determine 
ownership.  Hackett  v.  Larimer  &  Weld 
Reservoir  Co.,  post,  p.  224. 


1910] 


Caknes  v.  Dalton. 


209 


that  plaintiffs  have  the  first  right  as  against  defendant  to  one-eighth  of 
whatever  the  company  canal  will  carry,  and  it  seems  to  be  admitted  that 
this  quantity  is  represented  by  the  amount  that  will  flow  through  a  box 
one  foot  square  (no  pressure  being  given)  placed  in  the  side  of  the  canal 
as  hereinafter  described.  Assuming  this  to  be  correct,  it  will  be  seen  that 
the  carrying  capacity  of  the  company  ditch  is  much  less  than  claimed,  but, 
as  indicated,  such  feature  cannot  affect  the  result  herein. 

Plaintiffs  are  the  owners  and  in  possession  of  the  S.  W.  *4  of  the  S.  W. 
Ya  of  section  32,  township  6  S.,  range  39  E.  W.  M.,  and  the  N.  y2  of  the 
N.  W.  %  of  section  5,  and  10  acres  situated  in  the  N.  W.  yA  of  the  N.  E. 
J4  of  section  5,  adjoining  the  same,  all  in  township  7  S.;  range  39  E.  W. 
M.,  containing  120  acres  of  agricultural  lands,  of  which  90  acres  are  cul- 
tivated to  orchards,  garden,  etc.,  such  tract  having,  since  the  year  1886, 
been  irrigated  by  means  of  water  conveyed  through  the  company  ditch 
mentioned,  in  the  right  to  which  plaintiffs,  together  with  L.  S.  Kelsey,  are 
tenants  in  common,  and  prior  in  time  and  right  to  defendant. 

The  defendant  owns  the  W.  V2  of  section  3;  the  E.  y2  of  the  S.  E.  *4, 
and  the  S.  y2  of  the  N.  E.  }/4  of  section  4 ;  the  S.  E.  14  of  the  S.  E.  % 
of  section  10;  the  W.  y2  of  the  N.  E.  y4  of  section  2;  and  the  N.  W.  yA 
of  section  10,  all  in  township  7  S.,  range  39  E.  W.  M.,  in  Baker  county, 
Or.,  of  which  he  has  about  200  acres  in  alfalfa  and  other  crops;  and 
his  title  to  which  it  is  claimed  relates  back  to  the  year  1880. 

Prior  to  1888  the  plaintiffs'  predecessors  in  interest  and  L.  S.  Kelsey 
were  the  exclusive  owners  of  the  company  ditch,  right  of  way  and  water 
right  through  it.  During  that  year  they  entered  into  an  agreement  with 
the  defendant,  his  co-owners  and  their  predecessors  in  interest,  whereby 


C.      Not    All     Riparian     Owners. 

Bill  by  one  riparian  proprietor  to  en- 
join a  certain  party  from  diverting  water 
need  not  join  as  parties  all  the  riparian 
owners.  Rincon  Water  &  Power  Co.  v. 
Anaheim  Union  Water  Co.,  115  Fed.  543 
(1902). 

D.  Higher   Appropriators. 

Appropriators  of  water  of  stream 
above  the  lands  of  the  parties  to  the  ac- 
tion are  not  necessary  parties  in  action 
to  enjoin  diversion  by  defendants.  Beck 
v.  Bono,  post,  p.  222. 

E.  Intermediate  Owners. 
Intermediate    owners    who   have    made 

diversions  of  the  water  and  whose  rights 
W.    &   M.— 14 


will  be  affected  by  the  decree  are  neces- 
sary parties.  Bliss  v.  Grayson,  24  Nev. 
422,  56  Pac.  231  (1899),  affirmed  25 
Nev.  329,  59  Pac.  888    (1900). 

F.  Immaterial  if  Party  Plaintiff  or 
Defendant. 
In  an  equitable  action  to  determine 
the  rights  of  all  parties  on  a  stream,  it 
is  immaterial  whether  the  parties  are 
plaintiffs  or  defendants  if  they  are  all  be- 
fore the  court.  Williams  v.  Altnow,  51 
Or.  275,  95  Pac.  200    (1908). 

II.      Owners  in  Severalty. 

The  owners  of  different  water  rights, 
neither  of  which  had  any  interest  in  the 
land,  water  or  ditch  of  the  others,  can- 
not unite  in  an  action  against  one  who 


210 


Water  axd  Mineral  Cases. 


[Oregon 


the  ditch  was  enlarged  to  double  its  capacity — that  is,  to  eight  feet  in 
width — and  through  which  it  was  understood  defendant  and  his  co-own- 
ers should  thereafter  have  the  right  to  convey  water  appropriated  by 
them,  which  right  it  then  was,  and  still  is,  understood  and  recognized,  as 
being  subsequent  in  time  and  inferior  in  right  to  Kelsey  and  Wilson,  the 
latter  being  the  predecessor  in  interest  of  plaintiffs ;  and  that  Kelsey  and 
Wilson,  and  their  successors  in  interest,  should  at  all  times,  when  the 
supply  of  water  was  inadequate  for  the  accommodation  of  all  parties, 
have  the  first  right  to  the  use  thereof  through  such  ditch.  As  to  the 
ditch,  it  was  recognized  that  this  defendant  and  his  co-owners  should  own 
one-half,  and  Kelsey  and  Wilson  one-half,  the  division  of  the  waters 
flowing  therein  to  be  at  a  point  from  which  defendant  and  his  co-owners 
should  extend  a  canal  in  the  direction  of  and  to  their  premises,  opposite 
to  which  the  ditch  of  Kelsey  and  Wilson  continued  in  the  direction  of 
and  to  their  premises,  as  before  the  enlargement  of  the  upper  and  com- 
pany portion  thereof. 

A  dispute  arose  between  Kelsey  and  his  co-owners,  resulting  in  the 
institution  of  a  suit  by  one  of  the  parties  (McPhee)  against  Kelsey.  This 
cause  was  tried  and  thereafter  appealed  to  this  court  (McPhee  v.  Kel- 
sey, 44  Or.  193,  74  Pac.  401,  75  Pac.  713),  where  a  decree  was  entered 
modifying  the  judgment  of  the  trial  court.  Subsequently  this  decree 
was  vacated,  and  the  cause  remanded  for  a  new  trial  (45  Or.  290,  78  Pac. 
224),  after  which  further  testimony  was  taken,  findings  made,  and  a  de- 
cree entered,  the  purport  of  which  was  to  hold  that  the  plaintiffs  there- 
in,  McPhee,  Dalton,  et  al.,  were  the  owners  of  an  undivided  one-hali 
interest  in  the  canal  to  the  point  of  divergence  of  the  extended  ditches 
of  the  respective  parties,  and  that  Kelsey  was  the  owner  of  the  right  to 
the  remaining  one-half;  and  it  was  further  decreed  that   at  the  point  ot 


diverts  the  stream  further  up.  Foreman 
v.  Boyle,  88  Cal.  290,  26  Pac.  94  (1891). 

Settlers  upon  public  lands  along  a 
stream  who  have  acquired  rights  to  ap- 
propriate and  use  waters  from  such 
stream  as  a  common  source  of  supply, 
each  owning  separately  his  land  and 
water  right,  in  his  individual  capacity 
may  join  in  an  action  to  enjoin  inter- 
ference with  such  rights;  they  having  a 
sufficient  common  interest.  Frost  v. 
Alturas  Water  Co.,  11  Idaho  294,  81  Pac. 
996  (1905). 

Those  whose  lands  are  flooded  by  rea- 
son of  obstructions,  etc.,  may  join  in  ac- 
tion for  injunction,  but  not  for  damages. 


Palmer  v.  WaddelL  22  Kan.  352   (1879). 

The  owners  of  several  mills  erected 
upon  and  using  the  same  stream  to 
operate  their  mills  may  join  in  an  action 
to  restrain  a  stranger  from  taking  the 
water,  to  their  damage.  Ballou  v.  In- 
habitants of  Hopkinton,  70  Mass.  (4 
Gray)   324   (1855). 

Where  several  landowners  are  each  in- 
jured by  the  maintenance  of  a  dam  they 
may  join  in  action  for  injunction  against 
the  same.  Turner  v.  Hart,  71  Mich.  128, 
38  N.  W.  890,  15  Am.  St.  Rep.  243 
(1888). 

Injunction  against  obstruction  in 
stream    may   be    brought    by    owners    of 


1910] 


Carnes  v.  Dalton. 


211 


divergence  mentioned,  the  canal  being  eight  feet  wide,  a  box  should  be 
placed,  and  so  arranged  that  a  body  of  water  four  feet  in  width  should 
flow  into  the  McPhee-Dalton  ditch,  and  a  like  body  of  water  flow  into 
the  Kelsey  ditch.     From  this  no  appeal  was  taken,  and  the  decree  be- 
came final.    In  that  suit  neither  these  plaintiffs  nor  their  predecessors  in 
interest  were  parties.     The  plaintiffs'  grantors,  however,  received  their 
supply  of  water  from  year  to  year  through  the  opening  in  the  box,  placed 
there  by  order  of  the  court  for  Kelsey's  interest.     About  one  year  prior 
to  the  commencement  of  this  suit  plaintiffs  purchased  the  real  property 
and  water  right  mentioned,  under  the  conveyance  of  which  it  appears 
that  plaintiffs  own  what  is  termed  throughout  the  proceedings  a  "one 
foot"  in  width  interest,  meaning,  by  this  unusual  and  indefinite  term,  the 
quantity  of  water  represented  by  one-eighth  of  the  width  of  the  canal, 
or  an  interest  in  a  quantity  equal  to  one-eighth  of  the  entire  flow  of  water 
capable  of  being  conducted  through  same.     This  quantity,  plaintiffs  de- 
cided, for  the  purpose  of  convenience  in  measuring,  to  take  from  a  point 
about  ten  feet  above  the  division  gate,  or  about  the  point  where  Kelsey 
and  Dalton  diverted  water;  for  which  purpose  they  inserted  a  box  one 
foot  square,  turning  the  water  around  the  head  gate  into  the  ditch,  used 
for  a  considerable  distance  in  common  by  them  and   Kelsey,  through 
which  water  was  conveyed  to  the  full  carrying  capacity  of  the  box,  weir 
measurement.     In  order  to  get  the  required  amount  through  the  box,  it 
was   necessary   that   the   water   be   raised  at  the  point  where  it  flowed 
through  the  Dalton  and  Kelsey  division  box.     Kelsey  asserting  the  right 
to  raise  the  water,  for  the  purpose  of  irrigating  his  lands,  closed  his  and 
defendant's  head  gate.     In  this  manner  plaintiffs  received  the  quantity 
desire  I  for  irrigation.    There  was  not,  at  the  time,  sufficient  water  flow- 
ing from  the  main  channel  of  the  creek  into  the  company  ditch  to  supply 


lands  higher  up  the  stream.     Gillespie  v. 
Forest,  18  Hun  (N.  Y.)   110  (1879). 

Where  the  injuries  are  separate  and 
distinct,  the  owners  in  severalty  of  ad- 
joining tracts  cannot  join  as  plaintiffs. 
Hellams  v.  Switzer,  24  S.  C.  39    (1885). 

III.     Tenants  in  Common. 

One  cotenant  may  sue  for  injury  to 
ditch  held  by  tenants  in  common.  Carnes 
v.  Dalton,  principal  case;  Odiorne  v.  Ly- 
ford,  9  N.  H.  502,  32  Am.  Dec.  387 
(1838). 

Where  there  is  no  dispute  as  to  the 
rights  of  the  various  cotenants  it  is  not 
necessary  that  they  all  be  made  parties 


in  action  for  injury  to  ditch.  Carnes  v. 
Dalton,  principal  case. 

One  tenant  in  common  may  sue  for  an 
infringement  of  his  right  without  joining 
his  cotenants.  Union  Mill  &  Mining  Co. 
v.  Dangberg,  81  Fed.  73  (1897). 

One  tenant  in  common  of  a  dam,  flume 
or  irrigating  ditch  may  maintain  action 
against  diversion  of  any  of  the  water  to 
which  either  he  or  his  cotenants  are  en- 
titled. Rogers  v.  Pitt,  89  Fed.  420 
(1898). 

In  action  to  restrain  diversion  of  water 
one  cotenant  may  sue  without  joining  the 
others.  Miller  &  Lux  v.  Rickey,  127  Fed. 
573   (1904). 


212 


Water  and  Mineral  Cases. 


[Oregon 


all  parties,  due  principally  to  the  dam  in  the  creek  at  the  head  of  the 
canal  having  partly  washed  away.  Dalton  removed  one  of  the  four-foot 
boards,  placed  there  by  Kelsey,  from  his  head  gate,  which,  with  the 
limited  quantity  of  water  then  in  the  ditch,  depleted  the  flow  in  plain- 
tiffs' box  to  such  an  extent  that  it  could  not  reach  their  premises,  re- 
sulting in  this  suit.  A  hearing  was  had  before  a  referee,  and  upon  the 
testimony  taken  by  him  the  learned  trial  court  found  that,  as  a  legal 
effect  of  the  acts  disclosed  by  the  evidence,  Dalton  was  in  no  wise  inter- 
fering with  plaintiffs'  rights ;  that  there  was  an  abundant  supply  of  water 
in  the  river  for  all  parties,  and  that  plaintiffs  could  have  had  an  adequate 
quantity  thereof  by  turning  the  same  into  the  ditch  •  that  such  injury  as 
was  occasioned  was  the  result  of  wrongful  acts  on  the  part  of  Kelsey, 
not  a  party  to  the  suit,  and  not  by  reason  of  any  claim  or  doings  of  de- 
fendant, resulting  in  a  dismissal  of  the  suit,  and  in  this  appeal. 

For  appellant — M.  L.  Olmstead,  and  Olmsted  &  Strayer. 

For  respondents — Leroy  Lomax,  and  Lomax  &  Anderson. 

KING,  J.  (after  stating  the  facts).  The  facts  above  stated  are  practi- 
cally conceded  by  the  pleadings,  as  well  as  by  defendant's  testimony,  only 
the  legal  effect  thereof  being  in  question.  Defendant  admits  removing 
the  four-foot  board  from  his  head  gate,  when  there  was  no  surplus  water 
in  the  company  ditch,  occasioning  thereby  the  depletion  complained  of, 
and  at  the  same  time  expressly  recognizes  that  plaintiffs'  water  right 
through  the  ditch  is  prior  in  time  and  superior  in  right  to  the  claim  of 
defendant  and  his  co-owners.  The  only  point,  then,  with  which  we  are 
concerned,  and  as  to  which  there  is  any  difficulty,  is  whether  plaintiffs 
had  a  right  to  elect  to  take  the  water  through  the  box  at  the  point  men- 
tioned. There  can  be  no  question,  under  the  pleadings  and  admissions 
of  defendant,  as  to  plaintiffs  being  entitled  to  the  quantity,  when  needed, 
capable  of  flowing  through  the  box  provided  at  his  point  of  diversion. 
The  conceded  one-eighth  interest  could  not,  without  pressure,  flow 
through  a  box  one  foot  square.     But  if  plaintiffs  elect  to  take  iess  than 


One  tenant  in  common  may  preserve 
the  entire  establishment  held  in  common, 
and  this  doctrine  is  applicable  where  the 
common  estate  is  a  water  right  so  long 
as  the  tenant  in  common  has  both  the 
necessity  for  the  use  and  actually  uses 
the  water  for  a  beneficial  purpose.  Cache 
La  Poudre  Co.  v.  Larimer  &  Weld  Reser- 
voir Co.,  25  Colo.  144,  53,  318,  71  Am. 
St.   Rep.    123    (1898),   affirming   8   Colo. 


App.  237,  45  Pac.  525  (1896)  ;  Meagher 
v.  Hardenbrook,  11  Mont.  385,  28  Pac. 
451  (1891). 

IV.      Beneficial    Owners. 

In  a  suit  to  enjoin  water  commis- 
sioners from  diverting  certain  waters  for 
the  benefit  of  subsequent  appropriators, 
the  subsequent  appropriators,  being  the 
real    parties    in    interest,    are    necessary 


1910J 


Caknes  v.  Dalton. 


213 


the  quantity  to  which  they  may  be  entitled,  it  is  obvious  that  defendant 
is  not  in  position  to  complain.  Furthermore  this  quantity  appears  to  be 
adequate  for  plaintiffs'  purposes.  It  will  be  remembered  that  plaintiffs 
were  not  parties  to  the  former  suit,  and  are  in  no  wise  bound  thereby, 
and  their  interests,  so  far  as  here  involved,  must  be  considered  as  if 
such  suit  had  never  been  instituted.  It  is  argued  that  the  suit  in  hand 
was  properly  dismissed,  not  only  for  the  alleged  reason  that  there  was 
no  interference  or  pretended  interference  with  plaintiffs'  rights,  but  on 
account  of  the  injury  complained  of  being  the  result  of  wrongful  acts  by 
Kelsey.  It  is  true  that  Kelsey  was  enjoined  by  the  former  decree  from 
either  removing  boards  from,  or  obstructing  the  flow  through  Dalton's 
half  of  the  head  gate,  unless  otherwise  ordeied  by  the  court,  provision 
for  which  was  reserved  in  the  decree.  If,  then,  Kelsey  violated  this 
decree  and  closed  the  head  gate,  that  is  a  matter  with  which  Dalton  and 
Kelsey  only  were  concerned,  and  not  these  plaintiffs. 

Defendant  and  his  co-owners,  it  is  conceded,  were  entitled  to  use  the 
ditch  only  for  the  purpose  of  conveying  surplus  waters,  from  which  it 
follows  tha-t  if  there  were  no  surplus  therein,  they  had  no  right  to  re- 
move the  board  which  occasioned  the  injury  to  plaintiffs.  It  was  cer- 
tainly not  incumbent  upon  plaintiffs,  whose  rights  were  first  and  supe- 
rior to  defendant,  to  see  that  sufficient  water  was  flowing  in  the  canal  to 
supply  defendant's  needs,  for,  their  rights  being  first,  it  necessarily  de- 
volved upon  defendant  to  see  that  the  desired  surplus  was  in  the  canal, 
and  it  became  his  duty,  subject  to  the  qualifications  to  follow,  to  provide 
therefor,  before  lowering  his  head  gate  to  let  such  surplus  pass  through  to 
his  premises.  Under  the  agreement  with  plaintiffs'  predecessors  in  inter- 
est, plaintiffs  were  and  are  tenants  in  common  in  the  company  ditch  and 
dam  at  its  source  with  Dalton  and  others,  succeeding  to  the  original  inter- 
ests, making  each  responsible  in  proportion  to  his  interest  therein,  for  the 
maintenance  and  repair  of  the  dam  and  ditch,  and  in  case  of  default  of 
one  or  more  the  other  has  a  right  to  make  such  repairs,  for  which  the  de- 
faulting party  becomes  liable  for  his  pro  rata;  but  such  failure  by  plain- 
tiffs, if  any,  did  not  justify  defendant,  under  the  law,  in  making  up  the 
loss  thus  occasioned,  by  drawing  off  the  water  from  plaintiffs'  division 


parties  to  the  action.    Squires  v.  Livesey, 
36   Colo.   302,  85  Pac.   181    (1906). 

In  an  action  to  restrain  irrigation  of- 
ficers from  closing  certain  head  gates, 
brought  by  certain  consumers  of  the 
water,  the  other  consumers  whose  rights 
are  affected  thereby,  being  the  real  par- 
ties in  interest,  must  be  joined  as  defend- 
ants.     McLean    v.    Farmers'    High    Line 


Canal  &  Reservoir  Co.,  44  Colo.  184,  98 
Pac.  16  (1908). 

V.      Necessity  of  Possession. 

An  owner  not  in  possession  can  bring 
action  only  for  injury  to  the  reversion 
by  the  diversion  of  water  from  a  stream. 
Rathbone  v.  McConnell,  20  Barb.  (N.  Y.) 
311  (1855). 


214 


Watek  and  Mineral  Cases. 


[Oregon 


box.    See  Moss  v.  Rose,  27  Or.  595,  41  Pac.  666,  50  Am.  St.  Rep.  743. 
When,  therefore,  he  removed  the  board,  causing  the  depletion  complained 
of,  without  making  provision  for  an  additional  supply  of  water  in  the 
ditch  to  make  up  the  deficiency,  he  necessarily  invaded  plaintiffs'  rights 
to  their  injury,  of  which  they  were  entitled  to  complain.     This  was  as 
much  an  encroachment  upon  plaintiffs'  rights  as  if  he  had  tapped  plain- 
tiffs' ditch  below  the  point  of  diversion.     Had  the  company  ditch  been 
partitioned,  so  that  plaintiffs'  so-called  "one  foot"  in  width  of  water  would 
have  flowed  separately  and  apart  from  the  waters  in  the  adjacent  canal, 
it  would  certainly  not  be  urged  that  Dalton  would  have  the  right,  in  the 
event  of  a  shortage,  to  open  this  partition;  this,  however,  was  not  the 
method  pursued.     The  waters  claimed  by  each  were  allowed  to  mingle, 
and  were  divided  at  the  point  above  indicated.    The  division  box,  there- 
fore, constituted  the  partition,  and  it  was  incumbent  upon  defendant,  in 
the  use  of  his  surplus,  so  to  adjust  it  as  not  to  interfere  with  plaintiffs' 
use,  so  long  as  plaintiffs'  use  and  manner  of  diversion  were  reasonable. 
The  method  pursued  by  plaintiffs  appears  to  have  been  for  the  purpose 
of  determining  when  they  were  receiving  their  quota  of  water,  for  the 
court  had  ruled  (although  not  as  against  them,  but  as  against  defendant 
and  his  co-owners)  that  Kelsey  was  entitled  to  the  quantity  that  would 
flow  through  the  four-foot  aperture.     When,  therefore,  it  is  disclosed 
that  the  quantity  was  of  the  same  depth  across  the  eight-foot  box,  and 
within  the  manner  designated  by  the   commissioner   appointed  by  the 
court,  it  becomes  clear  that  the  one-half  awarded  Kelsey,  and  the  one 
foot,  or  one-eighth,  owned  by  plaintiffs,  would  not  have  flowed  through 
this  opening    without  an  additional  obstruction  being  placed  in  defend- 
ant's aperture  at  the  head  gate.     It  is  accordingly  immaterial,  so  far  as 
defendant  is  concerned,  whether  such  obstruction  was  placed  there  for 
the  purpose  of  increasing  the  flow  on  Kelsey's  side  of  the  box  or  for 
the  purpose  of  running  the  additional  quantity  through  the  Carnes  box, 
eight  or  ten  feet  above  it.     In  fact  the  latter  method  would  seem  to  be 
the  more  convenient  manner  of  distributing  the  water,   for  when  the 
supply  was  adequate  for  the  demands  of  all,  it  would  be  left  of  uniform 


Action  for  the  diversion  of  water  from 
a  stream  must  be  brought  by  the  party  in 
possession,  and  it  is  only  necessary  to 
prove  the  right  of  possession.  Hathbone 
v.  McConnell,  20  Barb.  (N.  Y.)  311 
(1855). 

VI.      Landlord  and  Tenant. 

The  owner  of  real  estate  and  the  ten- 
ant of  a  quarry  thereon  may  join  in  an 


action  for  the  flooding  of  the  quarry,  as 
the  grievance  is  common  to  both.  The 
injury  was  committed  at  the  same  time 
and  by  the  same  act  and  each  is  in- 
terested in  the  same  relief,  although 
their  interests  in  the  judgment  may  be 
unequal.  American  Bell  Glass  Co.  v. 
Nicoson,  34  Ind.  App.  643,  73  N.  E.  625 
(1905). 


•^0]  Cashes  v.  Dalton.  215 

depth  across  the  entire  width  of  the  head  gate,  and  require  only  such 
additional  flow  through  the  ditch  above  as  would  furmsh  the  increased 
quantity  necessary  to  fill  the  Carnes  box. 

The  question  then  arises  whether  Kelsey  was  a  necessary  party.  There 
is  no  dispute  between  Kelsey  and  plaintiffs  as  to  the  quantity  to  which 
plaintiffs  are  entitled.    It  is  conceded  by  all,  including  Kelsey,  that  plain- 
ts were  entitled  to  one-eighth  of  the  entire  flow,  an    Kelsey   i« 
only  that  it  be  diverted  to  plaintiffs  in  the  manner  adopted,  in  no  way 
attempted  to  interfere  with  plaintiffs'  use,  but,  on  the  other  hand,  en- 
deavored to  aid  them  in  acquiring  the  supply  required.    He  might properly 
have  been  made  a  party,  but  it  cannot,  under  the  record,  be  held  tha 
he  is  a  necessary  party,  for,  as  indicated,  a  determinate  of  the  rights 
between  plaintiffs  and  Kelsey  is  not  essential  to  the  solut.cn  of  the  diffi- 
cu  v  between  Dal.on  and  the  Carnes.    B.  &  C.  Comp   §  41.    The  only 
interference  that  plaintiffs  were  subjected  to  was  by  Dalton  hence  it  was 
not  required  that  be  make  any  one  else  a  party  defendant  by  reason  of 
the  trespass  complained  of.    It  is  well  settled  that  one  tenant  in  common 
a  dhch  or  water  right  may  institute  a  suit  for  unlawful  inter erence 
therein  by  another  tenant  (Moss  v.  Rose,  27  Or.  595,  4    Pac- «6.  f 
Am   St  Rep.  743),  and,  as  stated  by  the  court  in  Gould  v.  Stafford    /7 
CaT  at  page  67,  !  8  Pac.  at  page  870:    "Evidence  that  persons  other  than 
defendant  als diverted  water  from  the  stream  was  admissible  only  on 
t  i  sue  as  to  the  amount  of  damages.    If  defendant's  diversion  of  water 
as  wrongful,  he  could  have  no  defense  as  against  the  mjuneuon  ,n  the 
Z  tha,  others  were  guilty  of  a  similar  wrong,  and  evidenc. .offered  to 
prove  the  latter  fact  would  be  irrelevant  and  inadmissibl  e  _  Ardaspl, 
tiff  waived  all  claim  to  damages  (except  nominal),  we  *****  J£ 
error  to  admit  evidence  of  diversions  of  water  by  third  parties _  The 
same  case  was  later  before  that    supreme    court   on    appeal.     Gould    v 
Stafford   91  Cal.  .46,  27  Pac.  543 ;  "-,  101  Cal.  32,  35  P»c  4*9-     At 
fh    mri'als  the  pleadings  we™  amended  and  the  cause  heard  under  new 
issues    and  while  the  results  differ,  the  court  adheres  to  the  rule  hrst 
announced  on  this  point.    To  the  same  effect,  Wiel,  Water  Rlghts  r.2d  Ed.) 


Lessor  and  lessee  may  join  in  action  to 
enjoin  the  flowage  of  land,  for  their  in- 
terest is  the  same  in  preventing  the  in- 
jury. Andrews  v.  Wekenman,  144  Mich. 
199,  107  N.  W.  870   (1906). 

A  lessor  and  lessee  cannot  join  in  ac- 
tion for  damages  for  the  flowage  of  land, 
as  the  measure  of  recovery  to  each  is 
different.  Andrews  v.  Wekenman,  144 
Mich.  199,  107  N.  W.  870  (1906). 


VII.  Joint  Tort  Feasors. 
A  concert  of  action  is  necessary  before 
tort  feasors  can  be  joined  as  defendants. 
The  general  rule  as  to  tort  feasors  being 
joint  or  several  applies  to  actions  affect- 
ing water  rights.  Aeyes  v.  Little  Fork 
Gold   Washing  Water   Co.,   53    Cal.   724 

(1879). 

Several  parties  cannot  be  united  as  de- 
fendants in  action  for  damages  for  the 


216 


Water  and  Mineral  Cases. 


[Oregon 


§  196;  Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  186,  22  Pac.  76. 
See,  also,  note  to  Barnard  v.  Shirley,  41  L.  R.  A.  758,  where  authorities 
considering  this  principle  are  collated. 

It  is  also  argued  that  since  defendant  concedes  plaintiffs'  prior  right, 
and  manifests  no  intention  of  continuing  the  interruption,  the  suit  cannot 
be  maintained.  But  it  is  clearly  established  that  he  did  insist  upon  the 
right  to  deplete  the  flow  in  the  manner  complained  of,  and  in  his  answer 
prays  that  his  rights  therein  be  adjudicated,  under  which  circumstances 
it  is  fully  settled  that  a  suit  is  maintainable.  B.  &  C.  Comp.  §  394 ;  Jones 
v.  Conn.,  39  Or.  30,  47,  64  Pac.  855,  65  Pac.  1068,  87  Am.  St.  Rep.  634,  54 
L.  R.  A.  630;  Hough  v.  Porter,  51  Or.  318,  372,  95  Pac.  732,  98  Pac.  1083, 
102  Pac.  728;  Whited  v.  Cavin  (Or.),  105  Pac.  396,  401.  The  same 
point  was  urged  in  the  briefs,  and  at  the  oral  argument,  but  not  deemed 
important  in  Seaweard  v.  Pacific  Live  Stock  Co.,  49  Or.  157,  88  Pac.  963, 
and  Williams  v.  Altnow,  51  Or.  275,  95  Pac.  200,  97  Pac.  539. 

It  follows  that  the  decree  dismissing  the  suit  must  be  reversed,  and  one 
entered  enjoining  defendant  from  interfering  with  the  flow  of  one- 
eighth  the  carrying  capacity  of  the  company  ditch  to  and  through  the 
aperture  provided  by  plaintiffs  for  that  purpose.  And  it  appearing  im- 
portant that  the  rights  of  the  parties  hereto  should  be  adjudicated,  in 
the  benefits  of  which  each  must  share,  and  that  defendant  was  probably 
acting  within  what  he  believed  to  be  his  rights,  the  costs  allowed  defend- 
ant in  the  circuit  court  will  not  be  disturbed;  plaintiffs  to  have  their 
costs  on  appeal. 

EAKIN,  J.,  having  at  circuit  court  tried  the  former  suit  involving  this 
ditch,  took  no  part  in  this  decision. 

On  Petition  for  Rehearing. 

In  the  petition  for  rehearing  our  attention  is  called  to  McPhee  v.  Kel- 
sey,  44  Or.  194,  74  Pac.  401,  75  Pac.  713,  where  the  ditch  here  involved 
was  in  controversy,  the  petition  averring  it  was  there  held  that  L.  S. 
Kelsey  and  the  successor  of  the  elder  Wilson  "were  the  owners,  or  had 


diversion  of  water  where  they  do  not  act 
in  concert  and  there  is  no  collusion,  ar- 
rangement or  understanding  between 
them.  Evans  v.  Ross  (Cal.),  8  Pac.  88 
(1885). 

VIM.      Several   Tort    Feasors. 

In  an  equitable  action  to  establish 
right  to  water,  several  persons  diverting 
the  same  may  be  joined  as  defendants  al- 


though they  act  as  individuals,  and  not 
jointly  or  by  any  common  right.  Union 
Milling  &  Mining  Co.  v.  Dangberg,  81 
Fed.  73  (1897). 

Where  the  defendants  claim  from  the 
same  source,  divert  from  the  same  ditch, 
and  make  claims  of  right,  whether  sever- 
ally or  united,  to  the  use  of  the  water, 
which  affect  the  rights  of  plaintiff  there- 
to, they  are  properly  joined  in  an  action 


1910] 


Caenes  v.  Dalton. 


217 


the  superior  right  to  the  amount  of  water  which  would  fill  the  present 
ditch  to  one-half  its  capacity;  that  this  respondent  and  his  associates 
were  entitled  to  the  use  of  the  other  half  when  there  was  sufficient  water 
to  fill  the  ditch,  and  the  decree  of  the  circuit  court  which  is  in  evidence 
in  this  cause  is  to  the  same  effect" ;  and  that  it  has  been  decreed  and  con- 
ceded in  all  former  litigation  that  Kelsey  and  Wilson  (plaintiffs'  prede- 
cessors in  interest)  were  entitled  jointly  to  one-half  of  the  ditch;  and  that 
it  has  never  been  held  that  Kelsey  alone  was  entitled  to  one-half  interest. 
For  these  alleged  reasons  it  is  argued  we  are  in  error  in  holding,  in  effect, 
that  plaintiffs'  one-eighth  interest,  when  taken  together  with  Kelsey's 
decreed  rights,  results  in  a  right  in  defendant  and  others  interested  with 
him  to  but  three-eighths  of  the  quantity  capable  of  flowing  through  the 
company  ditch.  If  in  this  counsel  were  correct,  there  could  be  no  ques- 
tion as  to  the  soundness  of  their  position,  but,  as  stated  in  our  former 
opinion,  the  final  decree  in  McPhee  v.  Kelsey,  reported  in  44  Or.  194, 
74  Pac.  401,  75  Pac.  713,  was  vacated  and  a  new  hearing  ordered  (45 
Or.  290,  78  Pac.  224),  after  which  further  testimony  was  taken,  and  in 
the  decree  entered  thereunder  the  following  language  appears:  "That 
L.  S.  Kelsey  is  entitled  to  the  prior  and  exclusive  right  to  the  full  amount 
of  the  water  in  said  ditch  to  the  extent  of  said  four-foot  ditch  in  width ; 
that  plaintiffs  James  Dalton  and  P.  L.  Smith  (being  the  successors  in 
interest  jointly  with  George  Neil  of  the  rights  of  said  McPhee,  Smith, 
Tanner,  and  York  in  the  said  enlargement  of  said  ditch)  are  entitled  to 
the  amount  of  water  carried  by  such  enlargement,  subject  to  Kelsey's 
rights  above  defined."  It  is  also  conceded  that  four  feet  in  width,  as 
here  used,  means  a  one-half  interest,  and  in  all  the  former  litigation  re- 
specting this  ditch  it  is  so  treated. 

When  viewed  in  connection  with  the  contention  and  proof  in  the  above 
case  we  fail  to  see  any  ambiguity  in  the  language  quoted  from  the  decree. 
It  decrees  as  clearly  as  is  possible  to  do  so  that,  as  between  Kelsey,  on 
the  one  hand,  and  Dalton  and  Smith,  on  the  other,  Kelsey  alone  is  the 
prior  owner,  and  entitled  as  a  first  right  to  a  quantity  of  water  equal 
to  one-half  of  the  carrying  capacity  of  the  company  ditch,  and  the  part 


to  quiet  title.     Senior  v.  Anderson,   115 
Cal.  496,  47  Pac.  454  (1896). 

Where  no  claim  for  joint  damages  is 
made,  a  single  suit  may  be  maintained 
against  a  number  of  defendants  for  di- 
verting water,  although  they  are  not  act- 
ing in  concert  or  as  joint  tort  feasors. 
Montecito  Valley  Water  Co.  v.  City  of 
Santa  Barbara,  144  Cal.  578,  77  Pac.  1113 
(1904). 


IX.      Licensee  of   Defendant. 

In  an  action  to  regulate  and  fix  the 
rights  of  the  various  parties  to  the 
waters  of  a  stream,  one  taking  part  of 
the  waters  by  the  permission  or  license  of 
one  of  the  defendants,  may  be  joined  as 
a  defendant.  Van  Horn  v.  Clark,  56  N. 
J.  Eq.  476,  40  Atl.  203,  23  L.  R.  A.  685 
(1898). 


218 


Watee  and  Mineral  Cases. 


[Oregon 


of  the  decree  following  the  above  excerpt  enjoins  Dalton  and  his  then 
co-owner,  Smith,  from  any  interference  therewith.  This  decree  was 
offered  in  evidence  by  the  plaintiff,  and  for  obvious  reasons  must  be  con- 
sidered in  determining  the  rights  of  the  parties  hereto,  but  plaintiffs  can- 
not in  any  way  be  held  bound  thereby,  for  neither  they  nor  any  of  their 
predecessors  in  interest  were  parties  to  that  suit.  This  rule,  although 
elementary  appears  to  have  been  overlooked  by  the  petitioners. 

The  pleadings  in  this  case  concede,  and  the  proofs  fully  establish,  that 
the  plaintiffs,  Samuel  and  W.  A.  Carnes,  have  the  first  right  to  a  quantity 
of  water  equal  to  one-eighth  of  the  carrying  capacity  of  the  ditch  in- 
volved ;  from  which  it  necessarily  follows,  when  taken  in  connection  with 
the  adjudication  in  the  McPhee-Kelsey  suit,  that  defendant  Dalton  can- 
not interfere  with  plaintiffs'  first  right  to  the  use  of  a  quantity  of  water 
diverted  through  the  plaintiffs'  division  box,  not  exceeding  a  quantity 
equal  to  one-eighth  of  the  supply  capable  of  being  diverted  through  the 
company  ditch.  As  the  former  decree  gives  to  Kelsey  as  against  Dalton 
and  his  associates  in  the  former  suit  four-eighths  of  the  carrying  capacity 
of  the  ditch,  it  must  follow  that  when  Kelsey  and  these  plaintiffs  are 
each  using  their  respective  water  rights  to  the  full  extent  allowed,  there 
must  be  less  than  four-eighths  left  for  the  other  owners.  This  would 
leave  the  condition  such  that  when  plaintiffs  are  using  no  water,  then 
as  between  Dalton  et  al.,  on  the  one  hand,  and  Kelsey  on  the  other,  each 
could,  when  the  water  is  needed,  use  one-half  thereof.  That  is  to  say 
the  former  decree,  as  between  Kelsey  and  Dalton,  is  still  effective.  Kelsey 
being  first  entitled  to  a  "four-foot"  supply,  after  which,  when  not  needed 
by  the  Carnes,  Dalton  et  al.  may  receive,  when  available,  a  like  quantity, 
but  when  required  by  the  Carnes,  Dalton's  supply  must  be  reduced  in 
proportion  to  the  carrying  capacity  of  the  Carnes'  foot-square  division 
box,  whether  one-eighth  or  less. 

In  connection  with  the  foregoing,  reference  is  made  to  our  statement 
in  the  narrative  of  facts,  to  the  effect  that  Kelsey  and  Wilson  were  recog- 
nized as  having  one-half  interest,  and  the  defendant  and  his  co-owners 
one-half.     This  statement,  however,  had  reference  only  to  the  original 


One  across  whose  land  a  part  of  the 
ditch  in  question  runs,  and  who  tapped 
it  at  the  request  of  another,  is  a  proper 
party  to  join  with  the  latter  in  an  action 
wherein  the  right  to  the  ditch  is  in  con- 
troversy. Bowman  v.  Bowman,  35  Or. 
279,  57  Pac.  546  (1899). 

X.      Statutory  Actions. 

In  action  under  the  Colorado  statute 
to    determine    priorities,    those    parties 


whose  rights  have  been  theretofore  de- 
termined and  decreed  both  as  to  time 
and  quantity  need  not  be  joined  as  par- 
ties. In  re  Priorities  of  Water  Rights  in 
District  No.  12,  33  Colo.  270,  80  Pac.  891 
(1905). 

Under  the  Maine  statute  providing  for 
the  ascertainment  by  commissioners,  etc., 
of  the  damage  to  lands  from  flowage,  all 
the  owners  of  a  dam    must    be    joined. 


1910] 


Caenes  v.  Dalton. 


219 


understanding  between  the  parties,  and  not  to  the  decree  as  finally  en- 
tered. It  is  too  obvious  to  admit  of  discussion  that  not  what  we  may 
now  discover  as  the  original  understanding  between  the  litigants,  but  the 
decree  as  finally  entered  in  the  former  suit,  is  binding  upon  this  court. 

In  the  petition  much  discussion  is  entered  into  as  to  the  alleged  injustice 
in  holding  to  the  effect  that  defendant  cannot  divert  water  from  the 
river  into  the  company  ditch  or  in  any  way  interfere  with  or  use  the 
division  head  gate ;  that  the  division  gate  must  forever  remain  closed  for 
the  benefit  of  Kelsey  and  these  plaintiffs,  and  defendant  must  accord- 
ingly lose  his  entire  water  rights,  etc.,  etc.  But  there  is  nothing  in  the 
opinion  from  which  such  conclusions  may  be  deduced.  We  merely  held 
in  substance,  and  so  stated,  that  defendant  should  be  enjoined  from  inter- 
fering with  plaintiffs'  prior  right  to  the  use  of  the  quantity  of  water 
capable  of  being  run  through  the  Carnes  box  one  foot  square,  placed 
at  their  point  of  diversion  a  few  feet  above  the  Dalton-Kelsey  division 
box;  such  quantity  not  to  exceed  one-eighth  of  the  carrying  capacity  of 
the  company  ditch.  If  then  there  is  at  any  time  only  sufficient  in  the 
ditch  to  supply  the  quantity  awarded  plaintiffs,  then  as  between  the  plain- 
tiffs and  defendant  the  plaintiffs  are  entitled  to  close  defendant's  side 
of  the  division-box  in  such  manner  as  may  prove  essential  to  the  diver- 
sion of  such  quantity  through  the  Carnes  division  box.  Again,  when 
there  is  only  sufficient  to  furnish  Kelsey  his  four-eighths  and  the  Carnes 
the  quantity  awarded  them,  the  Dalton  side  of  the  division  box  may,  for 
that  purpose,  be  closed  entirely.  But  when  all  water  capable  of  flowing 
through  the  company  ditch,  in  excess  of  that  required  by  either  or  both 
of  the  parties  last  named,  is  in  the  company  ditch,  the  excess  must  be 
permitted  to  flow  to  defendant's  premises,  and  the  boards  in  the  head 
gate  may  be  removed  or  arranged  in  such  manner,  whether  by  defendant 
his  employees,  or  others  authorized  so  to  do,  as  to  permit  such  surplus  to 
flow  through  the  head  gate. 

We  do  not  wish  to  be  understood  as  adjudicating  in  this  suit  any  con- 
troversy between  Kelsey  and  this  defendant,  for  example,  as  to  what 


Turner  v.  Whitehouse,  68  Me.  221 
(1878). 

Under  the  Montana  code  all  parties 
who  have  diverted  water  from  the  same 
stream  may  be  joined,  and  the  court  may 
settle  all  rights,  but  this  provision  is 
permissive,  and  does  not  compel  the  de- 
fendants to  litigate  their  various  rights 
in  such  an  action.  Sloan  v.  Byers,  37 
Mont.  503,  97  Pac.  855   (1908). 

One  or  more  owners  may  sue  for  the 


flowage  of  their  lands  from  a  dam  built 
without  leave  to  build  or  continue  the 
same,  under  the  Nebraska  statute,  and 
need  not  negative  the  existence  of  other 
property  also  overflowed.  Pierce  Mill 
Co.  v.  Koltermann,  27  Neb.  722,  42  N. 
W.  877    (1889). 

Under  statute  providing  that  where 
the  question  is  one  of  a  common  or  gen- 
eral interest  of  many  persons,  one  or 
more  may  sue  for  the  benefit  of  all,  the 


220 


Water  and  Mineral  Cases. 


[Oregon 


lands  and  where  Kelsey  may  irrigate,  etc.  We  intend  only  to  recognize 
their  relative  rights  as  expressed  in  the  decree  in  evidence  between 
them,  and  the  rights  thereunder  are  here  considered  merely  in  connection 
with,  and  only  in  so  far  as  may  be  essential  to  a  full  understanding  and 
determination  of  the  controversy  in  hand.  Nor  can  we  at  this  time 
determine  the  relative  rights  of  the  plaintiffs  between  themselves,  or  as 
between  plaintiffs  and  Dalton's  co-owners,  or  as  against  Kelsey,  the 
reasons  for  which  are  obvious.  Indeed  it  is  unfortunate  that  all  were 
not  made  parties  either  to  the  former  suit  or  to  the  one  before  us,  where 
issues  could,  and  should,  have  been  framed  with  the  view  to  a  determi- 
nation (during  the  lifetime  of  the  witnesses)  of  the  relative  rights  of  all 
concerned,  but  in  the  absence  of  such  presentation  we  are  powerless  to 
afford  a  complete  remedy  for  the  many  complexities  possible  to  arise 
between  all  those  interested. 

It  is  argued  that  it  is  unnecessary,  in  order  to  furnish  plaintiffs  the 
water  awarded  them,  to  obstruct  the  flow  through  defendant's  division 
box.  When  the  company  ditch  is  used  to  its  full  carrying  capacity  this 
position  is  tenable,  but  to  concede  this  contention,  when  the  supply  is 
inadequate  for  all,  would  be  to  question  the  law  of  gravitation,  for  the 
findings  in  the  former  suit  recite  that  "the  bottom  of  the  Dalton  box  is 
4  feet  4  inches  wide,  and  has  a  rapid  fall  for  a  distance  of  io  feet  above 
the  box  and  the  same  through  the  box" ;  hence  when  there  is  only  suffi- 
cient in  the  ditch  to  supply  plaintiffs,  or  to  supply  plaintiffs  and  Kelsey, 
as  the  case  may  be,  and  defendant's  head  gate  is  left  open,  it  must  nec- 
essarily follow  that  a  part  of  the  water  would  flow  through  Dalton's  head 
gate,  depleting  plaintiff's  supply  proportionately.  The  contention  on 
this  point  overlooks  the  adjudicated  as  well  as  conceded  fact  that  plain- 
tiffs and  Kelsey  are  prior  appropriators,  and  their  actual  needs,  to  the 
extent  of  four-eighths  formerly  decreed  Kelsey  and  that  here  awarded 
plaintiffs,  must  first  be  supplied  before  any  water  may  flow  to  defendant, 
and  whatever  may  then  be  left  to  defendant,  whether  much  or  little,  be- 
comes immaterial.  It  may  prove  more  practicable  to  run  the  quantity 
going  to  Kelsey  and  these  plaintiffs,  as   tenants   in   common,   through 


owners  of  water  rights  along  a  stream 
have  a  common  and  general  interest  in 
preventing  the  diversion  of  water  from 
the  common  supply.  The  number  of  per- 
sons interested  is  not  fixed  by  the  stat- 
ute and  the  common  interest  of  four  per- 
sons is  sufficient  to  maintain  the  action. 
Climax  Specialty  Co.  v.  Senea  Button  Co., 
54  Misc.  152,  103  N.  Y.  Supp.  822 
(1907). 


Under  the  Utah  statutes,  parties 
claiming  rights  adverse  to  plaintiff  or 
diverting  water  from  the  same  stream 
to  his  injury  may  be  joined  as  defend- 
ants, although  some  of  them  reside 
out  of  the  county  where  the  suit  is 
brought.  Deseret  Irrigation  Co.  v.  Mc- 
Intyre,  16  Utah  398,  52  Pac.  628 
(1898). 


1910]  Caknes  v.  Dalton.  221 

Kelsey's  side  of  the  box,  but  if  so  it  will  necessitate  a  rearrangement  of 
the  company  division  head  gate.  This,  if  found  necessary,  may  be  directed 
by  the  trial  court  as  before,  through  the  aid  of  commissioners,  appointed 
for  the  purpose. 

We  appreciate  the  suggested  difficulty  possible  to  arise  in  carrying  out 
and  making  effective  the  decree  when  entered  if  all  the  parties  involved 
and  interested  do  not  comply  with  the  former  decree,  as  well  as  the  one 
here  entered,  but  with  that  we  have  nothing  to  do.  It  is  our  function  to 
interpret  and  not  to  administer  the  law.  In  this  connection,  however, 
it  may  not  be  improper  to  note  that,  as  supplementary  to  the  usual  method 
of  dealing  with  those  who  may  refuse  to  comply  with  the  decree  in  this 
class  of  cases,  an  adequate  administrative  system  appears  to  have  been 
provided  in  the  Act  of  1909.     See  Laws  1909,  p.  319. 

The  petition  for  rehearing  is  denied. 


222  Water  and  Mineral  Cases.  [Washington 

i 

BECK  et  al.  v.  BONO  et  al. 

[Supreme  Court  of  Washington,  August  5,   1910.] 
59  Wash.  479,   110  Pac.    13. 

Waters  and  Water  Courses — Pleading  and  Practice — Parties  to  Action  to  Enjoin 
Diversion. 

Appropriators  of  waters  of  a  stream  above  the  land  of  parties  to  the  action  are 
not  necessary  parties  to  determine  question  of  injunction  from  defendants  wrong- 
fully diverting  waters  to  plaintiffs'  damage. 

Action  to  enjoin  interference  with  water  rights,  for  the  establishment 
of  such  rights,  and  for  damages  for  the  illegal  use  of  certain  waters. 
Decree  determining  riparian  rights  of  the  parties  and  awarding  damages 
to  plaintiff.    Affirmed. 

For  appellants — Brooks  &  Bartlett. 

For  appellees — Sharpstein  &  Sharpstein  and  Ed.  C.  Mills. 

PER  CURIAM.  This  was  an  action  brought  by  the  respondents, 
seeking  to  enjoin  appellants  from  interfering  with  certain  water  rights 
claimed  by  the  respondents,  for  the  establishment  of  such  rights,  and  for 
the  damages  for  the  illegal  use  of  the  waters  of  certain  streams  in  Walla 
Walla  County.  The  riparian  rights  of  the  parties  to  the  action  were  de- 
termined by  the  court,  and  judgment  was  decreed  in  favor  of  the  plain- 
tiffs (respondents)  against  the  defendants  (appellants)  for  damages  in 
the  sum  of  four  hundred  dollars  and  costs. 

The  appellant  in  commencing  his  argument,  says  this  cause  is  character- 
ized in  its  inception  by  the  unwarranted  deprivation,  through  the  inter- 
position of  the  court,  of  the  rights  of  the  defendants  to  the  use  of  any 
of  the  water  of  the  Yellowhawk  Creek  on  the  Bono  ten-acre  tract,  and 
of  the  use  of  the  water  from  the  Robinson  ditch  on  any  of  their  lands, 
and  in  its  conclusion  by  an  attempt  to  extort  damages  in  an  amount 
the  existence  of  which  is  sought  to  be  established  rather  by 
the  enormity  of  the  demand  than  by  persuasion  of  the  evidence. 
It  was  finally  conceded  by  the  plaintiffs  and  granted  by  the  court  that 

As  to  necessary  parties  in  action  for 
diversion  of  water,  injury  to  ditch,  etc., 
see  note  to  Carnes  v.  Dalton,  ante,  p.  207. 


1910]  Beck  et  al.  v.  Bono  et  al.  223 

the  defendants  had  a  right  to  divert  water  from  the  Yellowhawk  Creek 
along  the  route  of  the  iron  pipe  line  across  the  plaintiffs'  lands  and  to 
a  two-fifths  interest  in  the  Robinson  ditch.  As  a  result,  much  of  the 
vital  part  of  the  action  has  been  eliminated,  leaving  subsidiary  and  minor 
questions  for  determination  and  settlement.  So  that  the  questions 
brought  here  on  appeal  are  simply  moot  questions,  or  at  least  affect  only 
the  merits  of  the  case  in  so  far  as  they  bear  upon  the  question  of 
damages. 

Contentions  were  made  under  the  complaint  concerning  the  lack  of 
defendants'  riparian  rights,  which  were  abandoned  at  the  trial,  and  from 
the  examination  of  the  voluminous  testimony  in  the  case  we  think  the 
award  was,  to  say  the  least,  as  favorable  to  the  appellants  as  they  de- 
served. The  only  contention  that  can  affect  appellants'  rights,  so  far  as 
the  judgment  for  damages  is  concerned,  is  that  there  is  a  defect  of  par- 
ties, because  it  is  alleged  by  the  appellants  that  there  were  appropria- 
tors  of  the  waters  of  this  creek  above  the  land  of  the  parties  to  this  ac- 
tion. It  is  not  necessary  to  make  others  parties  to  this  action  to  deter- 
mine whether  the  defendants  should  be  enjoined  from  wrongfully  di- 
verting waters  to  the  damage  of  plaintiffs.  That  is  a  question  of  proof. 
Under  the  allegations  of  the  complaint,  they  were  entitled  to  the  injunc- 
tion, and  we  think  the  proof  sustained  the  allegations. 

From  a  careful  examination  of  all  the  testimony  in  the  case,  we  are 
not  inclined  to  disturb  the  findings  of  the  court  in  reference  to  the  amount 
of  damages  adjudged.    ' 

The  judgment  is  affirmed. 


224  Water  and  Mineral  Cases.  [Colorado 


IIACKETT  et  al.  v.  LARIMER  &  WELD  RESERVOIR  COMPANY. 

[Supreme  Court  of   Colorado,  June  6,   1910.] 

48  Colo.   178,  109  Pac.  965. 

1.  Parties — Necessary    in    Action   for    Diversion    of   Water. 

Where  sole  question  was  whether  plaintiff  or  defendant  owned  certain  waters, 
irrigation  company  having  no  interest  in  the  ownership  thereof  was  neither  proper 
nor  necessary  party  to  the  action. 

2.  Same — Affected    by   Decree. 

Decree  is  not  objectionable  in  enjoining  defendants  from  interfering  with  head 
gates  or  interfering  with  superintendent  of  irrigation  company  in  discharge  of 
duties  at  certain  times,  for  reason  that  irrigation  company  was  not  a  party  to  the 
action. 

3.  Pleading    and    Practice — Complaint — Diversion    of    Waters — Priority  of 

Rights — Necessity  of  Allegation. 
In   action   to    restrain    defendants    from    diverting   water   belonging    to    plaintiff, 
no  question  of  priority  of  appropriation  being   involved,   priority  of   rights   of  the 
parties  by  appropriation  need  not  be  alleged. 

4.  Waters    and    Water     Courses — Commingling      of      Waters — No      Rights 

Conferred   by. 

The  fact  that  waters  of  reservoir  company  and  irrigation  company  were  com- 
mingled, defendants  having  right  to  use  certain -of  irrigation  company's  waters, 
does  not  invest  defendants  with  right  to  take  water  which  does  not  belong  to  them, 
nor  does  the  neglect  of  duty  of  the  irrigation  company  to  distribute  the  com- 
mingled waters  give  such  right. 

5.  Pleading   and   Practice — Parties  Only   Bound   by  Allegations. 

Plaintiff  is  not  bound  by  allegations  in  the  pleadings  in  a  suit  for  adjudication 
of  water  rights  to  which  it  was  not  a  party,  and  plaintiff  was  not  required  to 
intervene  therein. 

6.  Judgments — Parties  Only   Bound   by   Decree. 

Plaintiff  is  not  bound  by  decree  fixing  consumer's  rights  in  action  between  him 
and  irrigation  company,  to  which  it  was  not  a  party,  and  decree  therein  is  no 
defense  in  action  by  plaintiff  to  restrain  diversion. 

7.  Waters    and     Water     Courses — Commingling      of      Waters — Rights     of 

Consumers. 

The  commingling  of  two  classes  of  water,  to  part  of  one  of  which  defendant  was 
entitled,  gives  him  no  right  to  divert  that  part  in  which  he  had  no  interest.  Con- 
sumers of  water  supplied  by  irrigation  company  cannot  complain  of  any  use  of 
canals  or  ditches  granted  by  the  latter  or  acquired  by  operation  of  law,  which  does 
not  interfere  with  their  rights. 

8.  Same — Action  to  Enjoin  Interference — Defenses. 

In  action  by  reservoir  company  to  restrain  interference  with  its  waters,  it  is 
no  defense  that  a  large  volume  of  water  existed  at  the  source  of  supply  available 
under  another  appropriation,  to  part  of  which,  if  so  appropriated,  defendants  would 
be  entitled. 

Action  to  enjoin  diversion  and  interference  with  flow  of  water  in 
certain  irrigating  canal.     Judgment  for  plaintiffs.     Affirmed. 


1910]    Hackett  et  al.  v.  Lorimer  &  Weld  Eeservoir  Co.      225 
For  plaintiffs — Thomas  J.  Leftwich,  and  Newton  W.  Crose. 
For  defendant — Rhodes,  Temple  &  Foster. 

GABBERT,  J.  Plaintiffs  in  error,  in  an  action  brought  against  them 
by  the  defendant  in  error,  were  enjoined  from  interfering  with  the  flow 
of  water  in  the  canal  of  the  Larimer  &  Weld  Irrigation  Company, 
which  had  been  turned  into  that  conduit  by  defendant  in  error  from  its 
reservoir.  They  were  also  enjoined  from  interfering  with  the  head  gates 
of  the  irrigation  company,  except  upon  the  order  of  its  superintendent, 
and  from  in  any  manner  interfering  with  him  in  the  discharge  of  his 
duties  as  such  superintendent,  while  engaged  in  superintending  the 
canal  of  the  irrigation  company  during  the  flow  of  the  water  therein 
from  the  reservoir  of  the  defendant  in  error.  In  considering  the  ques- 
tions urged  by  counsel  for  plaintiffs  in  error  in  support  of  their  con- 
tention that  the  judgment  is  erroneous,  we  shall  refer  to  the  parties 
as  plaintiff  and  defendants,  which  was  their  relation  in  the  court  below. 

The  allegations  of  the  complaint  filed  by  plaintiff,  so  far  as  material 
to  any  question  involved,  were  to  the  effect  that  it  owned  the  Larimer 
&  Weld  Reservoir  in  which  it  stored  water  for  the  purposes  of  irrigation ; 
that  its  stockholders  owned  lands  lying  under  the  Larimer  &  Weld  Irriga- 
tion Company  canal,  and  were  entitled  to  water  from  the  reservoir  with 
which  to  irrigate  their  lands ;  that  water  turned  from  the  reservoir 
entered  this  canal ;  that  by  contract  it  had  acquired  the  right  to  run  its 
stored  water  through  this  canal ;  that  neither  the  Larimer  &  Weld  Irriga- 
tion Company  nor  the  defendants  had  any  interest  in  the  reservoir 
whatever,  or  the  water  stored  therein;  that  while  engaged  in  running 
water  from  its  reservoir  through  the  canal  for  distribution  to  its  stock- 
holders, defendants,  acting  in  concert,  had  raised  certain  head  gates  along 
the  canal  and  diverted  the  reservoir  water  flowing  therein,  to  the  volume 
of  about  twenty  cubic  feet  per  second  of  time,  and  were  taking  such 
water  against  the  protest  of  plaintiff  and  its  stockholders,  and  applying 
it  to  their  own  use.  The  issues  thus  tendered  were  found  in  favor  of 
the  plaintiff,  and  the  judgment  of  which  the  defendants  complain  entered. 

Clearly  this  judgment  was  correct,  for  the  obvious  reason  that  the 
testimony  establishes  that  defendants  were  taking  water  belonging  to  the 
plaintiff  and  its  stockholders,  in  which  they,  the  defendants,  had  no  right 
whatever,  unless  for  some  reason,  urged  upon  our  attention  and  not  so 
far  disclosed  from  the  facts  above  narrated  as  found  by  the  court  based 
on  the  allegations  of  the  complaint,  it  is  erroneous. 

As    to    joinder    of    parties    in    action   |  ditch,   etc.,   see   note   to   Carnes   v.   Dal- 
for  diversion  of  water  or  for  injury  to      ton,  ante,  p.  207. 
W.  &   M— 15 


226  Water  and  Mineral  Cases.  [Colorado 

The  defendants  demurred  to  the  complaint  upon  the  ground  that 
plaintiff  had  no  legal  capacity  to  sue,  and  that  there  was  a  defect  and 
nonjoinder  of  parties  plaintiff.  This  demurrer  was  overruled,  and  the 
same  question  was  sought  to  be  raised  by  answer  by  alleging  that  the 
Larimer  &  Weld  Irrigation  Company  was  a  necessary  party,  without 
whose  presence  a  complete  determination  of  the  controversy  and  an  adju- 
dication of  the  rights  of  the  parties  in  the  subject-matter  thereof  could 
not  be  had.  The  court  disregarded  this  plea.  It  is  urged  that  it  should 
have  been  sustained  for  the  reason  that  the  defendants  were  not  parties 
to  the  contract  between  the  reservoir  and  irrigation  companies,  whereby 
the  former  acquired  the  right  to  conduct  its  water  through  the  canal  of 
the  latter.  It  appears  from  the  averments  of  the  complaint,  is  undisputed 
by  the  testimony,  and  was  found  by  the  court,  that  the  irrigation  company 
had  no  interest  in  the  reservoir  water  whatever.  It  was  carried  through 
the  canal  of  the  irrigation  company  under  a  contract  between  the  two 
companies.  The  sole  question  was  whether  the  plaintiff  or  the  defendants 
owned  the  reservoir  water  which  the  defendants  were  diverting  from  the 
canal ;  hence,  the  controversy  was  narrowed  to  one  between  the  plaintiff 
and  defendants,  did  not  concern  any  other  party,  and  when  that  was 
settled  between  them,  the  rights  in  the  subject-matter  of  controversy 
were  completely  adjudicated  as  between  them.  Consequently,  the  pres- 
ence of  the  irrigation  company  as  a  party  was  not  required.  Clearly 
those  who  have  no  interest  in  the  subject-matter  of  controversy  involved 
in  an  action  are  neither  proper  nor  necessary  parties  thereto. 

It  is  also  urged  on  behalf  of  defendants  that  the  decree  discloses  the 
necessity  for  the  presence  of  the  irrigation  company.  This  contention 
is  based  upon  the  provision  in  the  decree  to  the  effect  that  the  defendants 
are  enjoined  from  interfering  with  the  head  gates  of  the  irrigation  com- 
pany except  upon  the  consent  or  order  of  the  superintendent  of  the  latter, 
and  from  in  any  manner  interfering  with  him  in  the  discharge  of  his 
duties  during  such  times  as  there  is  a  flow  of  water  in  the  canal  of  the 
irrigation  company  from  plaintiff's  reservoir. 

The  decree  is  not  objectionable.  Its  purpose  was  to  prevent  the 
defendants  from  diverting  the  water  of  plaintiff  company  from  the  canal 
when  it  was  being  conducted  by  means  of  that  channel.  From  the  evidence 
it  appears  that  under  the  contract  between  the  reservoir  and  irrigation 
companies,  the  superintendent  of  the  latter  was  to  distribute  the  water 
turned  into  the  canal  by  the  former  company.  For  these  services  the 
reservoir  company  paid  the  irrigation  company,  so  that  when  its  super- 
intendent was  engaged  in  distributing  the  water  of  the  reservoir  com- 
pany he  was  acting  for  it,  and  it  was  eminently  proper  to  enjoin  defend- 
ants from  interfering  with  him  in  the  discharge  of  such  duties.     There 


1910]    Hackett  et  ae.  v.  Loeimer  &  Weld  Eeservoir  Co.      227 

was  no  controversy  between  the  two  companies  with  respect  to  these 
matters. 

A  general  demurrer  to  the  complaint  was  also  interposed  and  over- 
ruled. The  many  reasons  advanced  in  support  of  the  claim  that  the 
demurrer  should  have  been  sustained,  when  summarized,  are  simply  to 
the  effect  that  the  complaint  does  not  state  facts  from  which  it  appears 
that  it  has  acquired  any  priority  to  divert  and  store  waters  for  irrigation 
purposes.  As  sustaining  this  proposition,  Farmers'  High  Line  C.  &  R. 
Co.  v.  Southworth,  13  Colo,  ill,  21  Pac.  1028,  4  L.  R.  A.  767;  Church  v. 
Stillwell,  12  Colo.  App.  43,  54  Pac.  395,  and  Farmers'  Independent  Ditch 
Co.  v.  Agricultural  Ditch  Co.,  3  Colo.  App.  255,  32  Pac.  722,  are  cited, 
in  which  cases  it  was  held  that  a  complaint  which  merely  alleges  a 
priority  of  an  appropriation  of  water  from  a  natural  stream,  without 
alleging  the  facts  showing  such  prior  appropriation,  states  a  conclusion 
of  law  only,  and  upon  demurrer  is  fatally  defective.  The  question  of 
priority  is  not  involved  in  the  case  at  bar.  Its  purpose  was  to  restrain 
the  defendants  from  diverting  water  belonging  to  or  under  the  control 
of  the  plaintiff  from  the  canal  through  which  it  was  being  conducted 
to  its  stockholders.  The  important  ultimate  question  presented  was.  Did 
the  defendants  have  any  right  to  this  water?  No  question  of  priority 
of  appropriation  as  between  the  parties  was  involved,  and  hence  the 
authorities  cited  are  not  in  point. 

All  the  defendants  except  Bushnell  interposed  a  joint  answer,  in 
which,  as  a  second  defense,  they  allege  that  under  certain  agreements 
known  as  the  Eaton  contracts,  dated  April  24,  1878,  they  and  their 
predecessors,  from  the  date  of  such  contracts,  had  acquired  and  enjoyed 
the  undisputed  right  and  use  of  sufficient  water  from  the  canal  of  the 
irrigation  company  to  irrigate  their  lands;  and  also,  under  such  con- 
tracts, were  entitled  to  the  exclusive  control  of  their  head  gates  placed  in 
such  canal.  In  support  of  this  assertion  they  alleged,  in  substance,  that 
April  24,  1878,  they  (the  defendants)  and  their  predecessors  in  interest 
were  the  owners  of  a  ditch  known  as  Irrigation  Ditch  No.  10,  taking 
its  supply  of  water  from  the  Cache  la  Poudre  River;  that  at  this  time 
Benjamin  H.  Eaton  was  engaged  in  constructing  what  was  afterwards 
known  as  the  Larimer  &  Weld  Irrigation  Company  canal;  that  they 
entered  into  contracts  with  Eaton  whereby  they  agreed  to,  and  did,  sell 
to  him  their  right,  title  and  interest  in  Ditch  No.  10,  in  consideration 
of  which  Eaton  covenanted  and  agreed  that  they,  their  heirs,  and  assigns. 
should  have  the  perpetual  right  and  privilege  to  take  from  the  ditch 
he  was  constructing  a  sufficient  quantity  of  water  to  irrigate  their  lands 
lying  thereunder ;  that  by  virtue  of  these  contracts  he  acquired  the  right 
of  way  and  appropriations  and  priorities  to  use  the  water  belonging  to 


228  Water  and  Mineral  Cases.  [Colorado 

Ditch  No.  10,  and  merged  the  same  into  the  canal  of  the  irrigation 
company;  that  they  have  since  diverted  from  the  latter  conduit  and 
applied  to  their  lands  the  water  to  which  they  were  entitled  by  virtue  of 
their  contracts  with  Eaton,  and  that  afterwards  he  sold  to  the  Larimer 
&  Weld  Irrigation  Company  the  canal  by  him  constructed,  subject  to 
the  provisions  and  terms  of  their  contracts. 

As  a  third  defense  these  defendants  alleged  that  the  plaintiff  company 
was  organized  by  the  stockholders  and  officers  of  the  Larimer  &  Weld 
Irrigation  Company,  with  the  object  of  acquiring  the  right  to  carry  the 
reservoir  water  through  the  canal  of  the  irrigation  company;  that  the 
plaintiff  company  acquired  their  rights  with  full  knowledge  that  they 
were  subject  to  the  rights  of  the  defendants,  vested  in  them  by  virtue 
of  the  contracts  set  out  in  the  second  defense.  They  further  alleged  that 
the  reservoir  water  turned  into  the  canal  had  been  commingled  with 
that  to  which  they  were  entitled  in  such  manner  as  to  render  it  impossible 
to  determine  what  proportion  was  reservoir  water  and  what  proportion 
might  lawfully  be  claimed  by  them;  that  the  right  of  plaintiff  to  use  the 
canal  of  the  irrigation  company  as  a  conduit  was  acquired  in  1891 ;  that 
since  such  date  they,  the  defendants,  have  enjoyed  the  free  and  unin- 
terrupted use  of  water  from  the  canal,  with  the  knowledge  of  plaintiff, 
and  without  let  or  hindrance  upon  its  part,  and  that  by  reason  thereof 
the  defendants  and  their  predecessors  have  expended  large  sums  of 
money  in  keeping  their  respective  head  gates  in  repair,  maintaining  their 
laterals,  and  in  the  application  of  water  to  their  lands,  whereby  the  equity 
of  plaintiff,  if  it  had  any,  has  become  stale;  and  that  there  has  accrued 
to  the  defendants  a  prescriptive  right  to  use  of  sufficient  water  from 
the  canal  to  irrigate  their  lands. 

By  the  fourth  defense  it  was  stated  that  in  an  action  between  the 
Colorado  Milling  &  Elevator  Company  and  the  Larimer  &  Weld  Irriga- 
tion Company,  in  which  it  was  sought  to  adjudicate  the  rights  of  these 
parties  to  the  use  of  water  from  the  common  source  of  supply,  as  well 
as  the  original  owners  of  Ditch  No.  10,  and  their  successors  in  interest, 
the  irrigation  company,  it  was  alleged  in  the  answer  of  the  latter  that 
the  volume  of  water  necessary  to  irrigate  the  lands  of  the  original  owners 
of  Ditch  No.  10  and  their  successors  was  more  than  192-3  cubic  feet 
per  second  of  time. 

The  second  and  third  defenses  of  the  defendant  Bushnell,  who  filed 
a  separate  answer,  are  along  the  same  lines  as  the  second  and  third 
defenses  of  his  codefendants.  By  his  fourth  defense  he  sought  to  inter- 
pose the  defense  of  res  judicata,  upon  allegations  to  the  effect  that  in 
an  action  wherein  he  was  plaintiff  and  the  Larimer  &  Weld  Irrigation 
Company  was  defendant,  in  which  was  involved  the  question  of  whether 


1910]    Hackett  et  al.  v.  Lorimer  &  Weld  Eeservoir  Co.      229 

or  not  he  had  a  perpetual  right  to  the  use  of  water  from  the  canal  of 
the  latter  (Bushnell  claiming  he  had,  under  one  of  the  Eaton  contracts), 
it  was  held  that  he  had,  and  a  decree  entered  accordingly.  It  is  further 
alleged  that  the  plaintiff  company  had  knowledge  of  that  action,  and 
failed  to  intervene. 

To  each  of  these  defenses  demurrers  were  interposed  and  sustained. 
The  defendants  have  assigned  this  as  error.  The  judgment  of  the  trial 
court  in  sustaining  the  demurrers  was  right,  for  the  simple  reason  that 
neither  of  the  defenses  stated  facts  from  which  it  appeared  that  the 
defendants  had  any  interest  in  the  reservoir  water.  Whatever  rights 
they  acquired  under  the  Eaton  contracts  were  limited  to  water  belonging 
to  the  Larimer  &  Weld  Irrigation  Company.  It  does  not  appear  from 
either  of  the  defenses  that  this  company  had  any  interest  in  the  reservoir 
water.  The  fact  that  the  waters  of  the  reservoir  and  canal  companies 
might  have  been  commingled  as  alleged  gave  the  defendants  no  right  to 
divert  water  which  did  not  belong  to  them.  It  was  the  duty  of  the  irriga- 
tion company,  as  stated  by  the  trial  judge  in  finally  disposing  of  the  case, 
to  put  in  measuring  weirs,  so  that  the  water  flowing  in  the  canal,  when 
divert  water  which  did  not  belong  to  them.  It  was  the  duty  of  the  irriga- 
tion company  to  discharge  its  duty  in  this  respect  did  not  invest  the 
defendants  with  the  right  to  take  water  which  did  not  belong  to  them. 
No  facts  were  alleged  from  which  it  would  appear  that  by  the  lapse 
of  time  the  defendants  had  acquired  any  prescriptive  right  to  the  use 
of  reservoir  water,  for  the  reason  that  it  nowhere  appears  that  they 
had  diverted  water  belonging  to  the  reservoir  company.  True,  they  say 
they  have  diverted  water  from  the  canal  without  let  or  hindrance  on  the 
part  of  the  plaintiff  company,  but  they  do  not  charge  that  the  water 
so  diverted  was  the  water  of  that  company. 

We  are  at  a  loss  to  understand  how  the  answer  of  the  irrigation  com- 
pany, set  out  in  the  fourth  defense  of  the  joint  answer  of  the  defendants, 
had  any  bearing  whatever  on  the  issues  between  the  parties.  The 
volume  of  water  necessary  to  irrigate  the  lands  of  the  defendants  was  not 
involved;  and,  aside  from  this  suggestion,  how  could  the  averments  in 
an  answer  of  the  irrigation  company,  in  an  action  in  which  plaintiff 
company  was  not  a  party,  affect  the  rights  of  the  plaintiff?  The  fourth 
defense  of  the  defendant  Bushnell  merely  stated  that  there  had  been  an 
action  between  himself  and  the  irrigation  company  which  involved  his 
right  to  a  perpetual  use  of  the  water  from  the  canal  of  that  company. 
The  plaintiff  company  was  not  a  party  to  this  suit,  nor  was  it  under 
any  obligation  to  intervene,  although  it  may  have  had  knowledge  of  its 
pendency.  Bushnell's  claim  was  not  asserted  to  any  water  other  than 
that  which  belonged  to  the  irrigation  company.  The  judgment  in  his 
case  fixed  no  rights  to  the  reservoir  water.     That  was  not  involved. 


230  Water  and  Mineral  Cases.  [Colorado 

It  appears  from  the  testimony  that  in  1862  several  pioneer  ranchmen 
settled  on  lands  adjacent  to  the  Cache  la  Poudre  River,  and  diverted 
water  from  that  stream  through  a  ditch  for  the  irrigation  of  their  lands. 
This  is  the  ditch  heretofore  referred  to  as  Ditch  No.  10.  About  1878 
the  late  Governor  Eaton  was  engaged  in  constructing  a  canal  which  would 
also  draw  its  supply  of  water  from  the  Cache  la  Poudre  River.  He 
entered  into  contracts  with  the  then  owners  of  Ditch  No.  10,  whereby 
he  acquired  the  latter  and  its  priorities,  in  consideration  of  which  he 
agreed  that  his  vendors,  their  heirs  and  assigns  should  have  the  perpetual 
right  to  take  from  ditch  No.  10  sufficient  water  to  irrigate  their  lands. 
These  are  the  contracts  heretofore  referred  to,  and  defendants  are  either 
parties  thereto  or  have  succeeded  to  the  rights  thereby  granted.  The 
purchaser  of  Ditch  No.  10  enlarged  and  merged  it  into  the  one  he  was 
then  constructing.  Later  he  sold  the  canal  as  enlarged  to  the  Larimer 
&  Weld  Irrigation  Company.  It  is  claimed  that  the  decree  deprives  the 
defendants  of  valuable  rights  acquired  by  virtue  of  the  Eaton  contracts. 
The  several  reasons  urged  in  support  of  this  contention,  under  several 
different  heads,  in  the  briefs  of  counsel,  go  to  the  one  proposition  that 
the  decree  repudiates,  annuls,  and  divests  the  defendants  of  their  rights 
under  these  contracts. 

No  question  of  that  character  is  involved.  The  contracts  gave  no 
right  whatever  to  water  in  the  canal  of  the  irrigation  company  except 
such  as  belonged  to  it.  In  the  reservoir  water  it  had  no  interest,  and  the 
judgment  rendered  simply  enjoins  the  defendants  from  taking  or  inter- 
fering with  the  distribution  of  water  belonging  to  or  under  the  control 
of  the  plaintiff  company,  an  entirely  independent  organization,  neither 
party  nor  privy  to  the  contracts. 

It  is  urged  that  the  decree  is  erroneous  for  the  reason  that  it  appears 
that  at  the  time  the  acts  complained  of  were  committed  there  was  com- 
mingled in  the  canal  of  the  irrigation  company  with  reservoir  water, 
other  waters  belonging  to  the  appropriations  of  the  irrigation  company, 
to  which  the  defendants  were  entitled.  Whatever  the  record  may  dis- 
close in  this  respect  is  immaterial.  The  commingling  of  the  two  classes 
of  water  did  not  give  the  defendants  any  right  to  divert  water  in  which 
they  had  no  interest.  In  this  connection  it  is  urged  that  the  contract 
between  the  two  companies,  and  condemnation  proceedings  which  ap- 
pear to  have  been  had,  whereby  the  reservoir  company  secured  the 
right  to  transport  its  water  through  the  canal  of  the  irrigation  company, 
were  of  no  binding  force  upon  the  defendants  because  they  were  not 
parties  thereto,  and  that  thereby  they  were  deprived  of  a  vested  right 
to  carry  their  water  through  the  canal.  It  is  unnecessary  to  determine 
this  question.    It  is  not  claimed  that  the  use  of  the  canal  by  the  reservoir 


1910]    Hackett  et  al.  v.  Lorimer  &  Weld  Eeservoir  Co.  231 

company  at  the  time  the  defendants  were  diverting  its  water  deprived 
them  of  carrying  water  to  which  they  were  entitled.  It  will  be  time 
enough  to  determine  that  question  when,  under  material  facts,  it  is 
presented  for  adjudication.  The  defendants  cannot  complain  of  any 
use  of  the  canal  granted  by  its  owner  or  acquired  by  operation  of  law, 
which  does  not  interfere  with  their  rights. 

It  is  also  urged  that  the  plaintiff  company  was  not  entitled  to  relief, 
for  the  reason  that  it  did  not  come  into  court  with  clean  hands.  Under 
this  head,  we  shall  only  consider  one  of  the  many  propositions  presented 
by  counsel  as  supporting  it,  as  all  others  have  been  disposed  of  in  con- 
sidering previous  questions.  It  is  claimed  that,  so  far  as  disclosed  by  the 
evidence,  there  may  have  been  in  the  river  at  the  time  defendants  com- 
mitted the  acts  complained  of,  a  large  volume  of  water  pertaining  to  the 
appropriations  of  the  irrigation  company.  Suppose  there  was;  that  did 
not  entitle  the  defendants  to  take  water  which  did  not  belong  to  them. 
The  reservoir  company  was  under  no  obligation,  neither  had  it  the 
right,  to  meddle  with  the  appropriations  belonging  to  the  irrigation  com- 
pany. If  the  latter  was  not  discharging  its  duty  to  the  consumers  under 
its  canal,  that  did  not  authorize  the  defendants  to  commit  a  wrong 
against  the  plaintiff. 

Many  other  propositions  are  urged  upon  our  attention  by  counsel  for 
defendants  which  it  is  not  necessary  to  consider  in  detail.  They  have 
already  been  covered  by  what  has  been  said,  or  relate  to  matters  not 
involved,  or  to  the  reception  of  testimony  which,  whether  relevant  or  not, 
did  not  prejudice  the  rights  of  the  defendants,  or  a  refusal  to  find  on 
issues  claimed  to  have  been  presented  by  the  testimony,  which  were  not 
material,  or  to  findings  of  fact,  whether  correct  or  incorrect,  which  did 
not  prejudice  the  defendants  on  the  real  question  involved.  That 
question,  in  a  nutshell,  was,  To  whom  did  the  reservoir  water  belong? 
It  unequivocally  appears  that  it  belonged  to  the  plaintiff,  and  that  the 
defendants  had  no  interest  therein  whatever. 

The  judgment  of  the  district  court  in  so  determining,  and  providing 
for  the  protection  of  plaintiff's  rights  as  against  the  claims  and  acts  of 
the  defendants,  will,  therefore,  stand  affirmed. 

Judgment  affirmed. 

STEELE,  C.  J.,  and  BAILEY,  J.,  concur. 


232 


Watee  and  Mineeal  Cases. 


[California 


McLEMORE  v.  EXPRESS  OIL  CO. 

[Supreme  Court  of  California,  November  17,  1010.] 


—  Cal.  —,112  Pae.  59. 

1.  Mining  Claim — Necessity  of  Actual   Possession. 

The  rule  that  actual  possession  is  not  necessary  to  protect  one's  title  to  a  claim 
held  under  a  mining  location  applies  only  when  the  location  has  been  completed 
by  a  discovery  of  valuable  mineral. 

2.  Oil   Claim — Continued   Operation    Required. 

Under  the  application  of  the  placer  mining  laws  to  the  oil  industry,  the  locator 
is  protected  in  his  possession  only  so  long  as  he  is  with  diligence  prosecuting  the 
labor  of  digging  his  well. 

3.  Public    Lands — Entry    Complete    without    Possession. 

Under  the  homestead  law,  possessio  pedis  is  not  necessary  to  complete  an  entry. 

4.  Public  Lands — Right  to  Explore  for  Oil  on  Homestead. 

Land  held  under  a  homestead  entry  is  not  subject  to  the  right  of  entry  for  the 
purpose  of  exploring  for  oil  without  positive  proof  that  the  land  is  more  valuable 
lor  mineral  than  for  agricultural  purposes. 


Department  2. 
Austin,  Judge. 


Appeal  from  Superior  Court,  Fresno  County;  H.  Z. 


Action  in  ejectment  by  C.  A.  McLemore  against  the  Express  Oil  Com- 
pany.    Judgment  for  plaintiff.     Defendant  appeals.     Affirmed. 

For  appellant— Frank  H.  Short  and  F.  E.  Cook. 

For  respondent — Larkins  &  Feemster. 

HENSHAW,  J.  The*  action  is  in  ejectment.  Judgment  passed 
for  plaintiff,  and  from  that  judgment  and  from  an  order  denying  de- 
fendant's motion  for  a  new  trial  it  appeals.  The  controversy  is  between 
a  claimant  to  government  land  under  homestead  entry,  and  a  claimant 
to  the  same  land  under  a  purported  mining  location.  An  attempted  loca- 
tion had  been  made  by  eight  associates,  defendant's  grantors,  under  the 
placer  mining  laws.  The  valuable  mineral  sought  to  be  discovered  was 
oil.  This  was  in  January,  1906.  A  cabin  was  constructed  upon  the  claim, 
its  boundaries  were  marked,  some  bits  of  road  built,  and,  in  the  language 


NOTE. 

As  to  the  necessity  of  discovery  under 
placer  mining   laws,   see  notes  to   Olive 


Land  &   Development    Co.    v.    Olmstead 
et  al.,  20  Mor.  Min.  Rep.  700. 


1910].  McLemoee  v.  Expkess  Oil  Co.  233 

of  appellant's  brief,  work  had  been  done  and  improvements  made  upon 
the  claim  "far  in  excess  of  the  requirements  of  the  United  States  stat- 
utes with  respect  to  assessment  work  and  before  any  claim  had  been 
initiated  by  the  plaintiff,  they  had  expended  in  a  direct  and  legitimate  way 
many  times  over  the  amount  required  in  the  way  of  assessment  work." 
Upon  April  12,  1907,  plaintiff  first  connected  himself  with  the  land  by 
fulfilling  all  the  requirements  for  entering  it  as  a  homestead.  At  that 
time,  finds  the  court,  no  one  of  the  defendants  was  in  possession  of  the 
land. 

Appellant's  first  contention  is  that  the  evidence  of  location,  occupation, 
and  possession  of  the  ground  as  a  mining  claim  by  defendant  was  suffi- 
cient to  exclude  it  from  entry  by  plaintiff  upon  the  12th  day  of  April, 
1907,  when  his   homestead   entry  was  made.     Undoubtedly   appellant's 
contention  in  this  respect  would  be  correct  if  the  location  was  valid  and 
complete  at  the  time  of  the  homestead  entry,  since  "actual  possession  of 
a  mining  claim  held   under  a  mining  location  is  no  more   necessary    for 
the    protection    of    the    title   thereto,   than      it     is      for     any     other 
grant    of    the    United    States"      (Belk     v.     Meagher,    104  U.   S.   279, 
26   L.    Ed.    735),    and   the    principle    has    become    axiomatic    that    dis- 
covery  and    appropriation    are    the    source    of    title    to    mining   claims, 
and  that  assessment  or  development  work  is  the  condition  of  their  con- 
tinued possession   (27  Cyc.  588).     But  this  rule  applies  only  when  the 
location  is  valid  and  complete.     And  a  location  is  valid  and  complete 
only  when,  after  compliance  with  other  requirements,  a  discovery  of  val- 
uable mineral  in  place  has  been  made.     In  the  case  of  ordinary  minerals, 
little  or  no  difficulty  has  been  experienced  by  the  courts  in  this  matter. 
In  practice,  the  miner  went  upon  the  public  domain,  and,  before  he  took 
the  trouble  to  stake  his  claim  and  post  and  record  his  notice,  he  made 
discovery.     The  staking  of  the  boundaries  of  the  claim  and  the  posting 
of  notice  followed  such  discovery.     When,  however,  congress  enacted 
that  locations  could  and  should  be  made  of  public  lands  containing  petro- 
leum or  other  mineral  oils  under  the  laws  relating  to  placer  mining  claims 
(Act  Feb.  11,  1897,  c.  216,  29  Stat.  526  [U.  S.  Comp.  St.  1901,  p.  1434]  ), 
the  courts  were  at  once  confronted  with  serious  difficulty  in  their  en- 
deavor to  obey  the  congressional  mandate,  and  fit  the  placer  mining  laws 
to  the  exigencies  of  oil  locations,  which  in  their  nature  were  radically 
dissimilar.     Thus    it  is  well  established    that  the  sole  power  of  disposi- 
tion and  control  of  the  public  lands  being  vested  by  the  Constitution  of 
the  United  States  in  congress  (Const.  U.  S.,  art.  4,  §  3),  congress  could 
at  any  time  change  its  policy  in  regard  to  those  lands  so  long  as  vested 
rights  were  not  impaired. 

It  was  fully  established,  also,  that  a  qualified  person,  who  had  made 
a  valid  location  upon  a  part  of  the  public  mineral  domain  (which  valid 


234  Water  and  Mineral  Cases.  [California 

location  always,  of  course,  included  discovery),  acquired  vested  rights, 
which  no  change  in  congressional  policy  could  affect  or  impair,  but  per 
contra  that  a  change  in  policy  could  impair  the  rights  of  one  upon  the 
public  domain  who  had  not  acquired  a  valid  location.    As  has  been  said 
in  the  case  of  other  minerals,  discovery  preceded  the  demarcation  of  the 
boundaries,  the  posting  and  recording  of  the  notice.     In  the  case  of  oil, 
discovery,  in  the  very  nature  of  things,  would  rarely  or  never  be  made 
except  at  the  end  of  much  time  and  after  the  expenditure  of  much  money, 
the  discovery  of  oil  involving  the  erection  of  a  derrick  and  the  laborious 
drilling  of  a  well,  frequently  to  the  depth  of  3,000  feet  and  more.     If, 
therefore,  the  placer  mining  laws,  which  were  declared  by  congress  to 
be  the  only  laws  under  which  oi!  locations  could  be  established,  were 
to  be  made  of  any  practical  benefit  to  the  oil  locator,  it  must  be  by  per- 
mitting him  to  mark  the  boundaries  of  his  location  and  post  and  record 
his  notice,  and  protect  him  in  possession  while  he  was  with  diligence 
prosecuting  the  labor  or  digging  his  well  to  determine  whether  or  not  a 
discovery  could  be  made.     So  it  was  held  by  the  federal  courts,  by  the 
courts  of  some  of  the  other  states,  and  by  this  court  in  Miller  v.  Chris- 
man,  140  Cal.  447,  73  Pac.  1084,  74  Pac.  444,  98  Am.  St.  Rep.  63,  to 
the  following  effect:     "One  who  thus  in  good  faith  makes  his  location, 
remains  in  possession  and  with  due  diligence  prosecutes  his  work  towards 
a  discovery,  is  fully  protected  against  all  forms  of  forcible,  fraudulent, 
surreptitious,  or  clandestine  entries  and  intrusions  upon  his  possession. 
Such  entry  must  be  always  peaceable,  open  and  above  board,  and  made  in 
good  faith,  or  no  right  can  be  founded  upon  it."     Weed  v.  Snook,  144 
Cal.  439,  77  Pac.  1023;  Cosmos,  etc.,  Co.  v.  Gray  Eagle  Oil  Co.  (C.  C), 
104  Fed.  20;  Id.    112  Fed.  4,  50  C.  C.  A.  79,  61  L.  R.  A.  230;  Id.    190 
U.  S.  301,  23  Sup.  Ct.  692,  47  L.  Ed.  1064;  Whiting  v.  Straup,  17  Wyo. 
1,  95  Pac.  849,  129  Am.  St.  Rep.  1093 ;  Moffat  v.  Blue  River,  etc.,  Co.,  33 
Colo.  142,  80  Pac.  139.     But  it  is  always  to  be  borne  in  mind  that,  until 
the  perfection  of  the  inchoate  and  incomplete  location  by  discovery,  the 
locator  has,  first,  no  vested  rights  which  congress  is  obliged  to  recognize ; 
so  that  congress  may  change  its  policy  in  regard  to  the  lands  to  the 
extent  even  of  excluding  therefrom    the  diligent  operator  who  has  not 
made  discovery.     However  inequitable  such  a  proceeding  might  be,  it 
in  no  way  would  be  illegal;  secondly,  it  is  to  be    observed    that    the 
laws  touching  assessment  work   are   not   applicable   to   such   an   imper- 
fect    location.     When     the     location     is     valid     and     complete,    the 
law    exacts    the    doing    of    but    one    hundred     dollars     of     work     per 
year,  and,  when  that  is  done,  all  of  the  locator's  rights  are  fully  protected, 
whether  he  remains  in  possession  longer  than  is  necessary  to  do  that 
work  or  not.     But   where  the  location  is  incomplete,  no  question  of  as- 
sessment work  is  involved.    What  the  attempting  locator  has  is  the  right 


1910]  McLemore  v.  Express  Oil  Co.  235 

to  continue  in  possession,  undisturbed  by  any  form  of  hostile  or  clandes- 
tine entry,  while  he  is  diligently  prosecuting  his  work  to  a  discovery. 
This  diligent  prosecution  of  the  work  of  discovery  does  not  mean  the 
doing  of  assessment  work.     It  does  not  mean  the  pursuit  of  capital  to 
prosecute  the  work.     It  does  not  mean  any  attempted  holding  by  cabin, 
lumber  pile,  or  unused  derrick.  It  means  the  diligent,  continuous  prosecu- 
tion of  the  work,  with  the  expenditure  of  whatever  money  may  be  neces- 
sary to  the  end  in  view.  Of  such  work  defendant's  grantors  were  not  in  the 
prosecution  up  to  April  12,  1907.     They  were  not  only  not  in  the  actual 
possession  of  the  land,  as  the  courts  finds,  but  the  evidence  discloses  that 
what  they  had  done  was  no  more  than  an  attempt  to  hold  the  land  under 
the  theory  that  assessment  work  was  adequate  for  that  purpose.     It  is 
shown  by  the  evidence  that  they  were  not  only  not  engaged  in  the  dili- 
gent prosecution  of  the  work,  but  that  they  were  not  financially  able  so 
to  prosecute  it,  and  were  either  in  search  of  capital  to  enable  them  to  do 
so,  or  in  search  of  a  purchaser  to  buy  out  such  interest  as  it  might  be 
thought  that  they  had.    The  cases  of  Cosmos,  etc.,  Co.  v.  Gray  Eagle  Oil 
Company  (C.  C),  104  Fed.  20,  and  112  Fed.  4,  50  C.  C.  A.  79,  61  L..R. 
A.  230,  are  not  at  all  in  conflict  with  these  views.    To  the  contrary,  these 
views  and  those  expressed  in  Miller  v.  Chrisman,  supra,  Weed  v.  Snook, 
supra,  and  New  England,  etc.,  Oil  Co.  v.  Congdon,   152  Cal.  211,  92 
Pac.   180,  are  themselves  in  great  part  based  upon  the  opinion  of  the 
learned  circuit  judge  in  those  cases.    The  federal  cases  involved  conflicts 
between  "scrippers"  and  oil  locators,  under  an  act  which  allowed  the 
scrippers,  for  the  land  from  which  they  had  been  displaced,  to  "select 
in  lieu  thereof  an  equal  tract  of  vacant  land  open  to  entry."     They  en- 
deavored to  select  land  that  was  not  only  in  the  possession  of  oil  men, 
but  of  oil  men  who  were  diligently  prosecuting  their  work  to  a  discovery 
so  as  to  complete  their  locations.     The  circuit  court  held  that  such  land 
so  occupied  and  worked  was  not  vacant  land  open  to  entry  within  the 
meaning  of  the  act,   and  declared    (we  quote   from  the  syllabus  which 
correctly  enunciates  the  determination)  :     "A  claimant  of  land  entered 
under  Act  June  4,  1897  f  Act  June  4,  1897,  c.  2,  30  Stat.  36  [U.  S.  Comp. 
St.  1901,  p.  1541]),  in  lieu  of  land  situated  within  a  forest  reservation, 
on  an  affidavit  stating  its  nonmineral  character,  that  it  was  free  from  min- 
ing claims,  and  was  entered  for  agricultural  purposes,  will  not  be  granted 
relief  in  equity  against  another  claimant  in  possession  under  an  oil  placer 
mining  location,  made  prior  to  such  entry,  and  followed  up  by  develop- 
ment work,  which  was  being  prosecuted  on  the  land  when  the  entry  was 
made,  and  resulted  in  valuable  producing  wells,  where  the  affidavit  of 
the  entry  man  was  also  false  in  other  particulars,  the  land  being  value- 
less for  agricultural  or  grazing  purposes,  but  situated  in  an  oil  district, 


236  Water  and  Mineral  Cases.  [California 

and  the  entry  being  in  fact  made  because  of  its  supposed  value  for  oil, 
although  no  discovery  of  oil  had  then  been  made  thereon." 

Plaintiff  filing  his  homestead  entry  upon  the  12th  day  of  April,  1907, 
made  physical  and  personal  entry  on  the  5th  day  of  October,  1907 — within 
the  six  months  limited  by  law.  Appellant  contends  that  plaintiff  had 
made  no  "entry"  within  the  meaning  of  the  law  until  he  took  possessionem 
pedis  on  October  5th:  that  up  to  that  time  he  had  acquired  merely  a  pref- 
erential right  of  entry  over  those  claiming  under  the  homestead  or  agricul- 
tural laws,  but  not  over  those  who  might  have  entered  under  the  mining 
laws.  In  this  connection  appellant  expounds  the  different  meanings 
which  have  been  given  to  the  word  "entry,"  and  concludes  that  the  entry 
of  a  homesteader  is  not  complete,  within  the  meaning  of  the  law,  until 
he  has  actually  gone  upon  the  ground.  But  this  is  not  the  meaning  of  the 
word  as  employed  in  the  statute.  In  "Suggestions  to  Homesteaders"  issued 
by  the  Commissioner  of  the  General  Land  Office  March  9,  1908  (para- 
graph 27,  page  12),  it  is  said:  "Actual  residence  on  the  lands  entered 
must  begin  within  six  months  from  the  date  of  all  homestead  entries,  ex- 
cept additional  entries  and  adjoining  farm  entries  of  the  character  men- 
tioned in  paragraphs  14  and  15,  and  residence  with  improvements  and 
annual  cultivation  must  continue  until  the  entry  is  five  years  old,  except 
in  cases  thereafter  mentioned,  but  all  entry  men  who  actually  reside  upon 
and  cultivate  lands  entered  by  them  prior  to  making  such  entries  may  make 
final  proof  at  any  time  after  entry  when  they  can  show  five  years'  resi- 
dence and  cultivation."  Says  the  Supreme  Court  of  the  United  States 
in  Hastings  &  N.  D.  R.  Co.  v.  Whitney,  132  U.  S.  357,  10  Sup.  Ct.  112,  33 
L.  Ed.  363 :  "Under  the  homestead  law  three  things  are  needed  to  be  done 
in  order  to  constitute  an  entry  on  public  lands :  First,  the  applicant  must 
make  an  affidavit  setting  forth  the  facts  which  entitle  him  to  make  such 
entry;  second,  he  must  make  a  formal  application;  and,  third,  he  must 
make  payment  of  the  money  required.  When  these  three  requisites  are 
complied  with,  and  the  certificate  of  entry  is  issued  to  him,  the  entry  is 
made — the  land  is  entered."  All  of  these  things  had  been  done  by  plain- 
tiff, and  his  entry  was  therefore  complete.  What  effect  did  this  entry 
have  upon  the  right  of  defendant  subsequently  to  enter  upon  the  land  and 
exploit  it  for  minerals? 

"A  homestead  entry,"  says  the  Supreme  Court  of  the  United  States, 
"which  is  prima  facie  valid  removes  the  land,  temporarily  at  least,  out 
of  the  public  domain."  Hastings  &  N.  D.  R.  Co.  v.  Whitney,  132  U.  S.  357, 
10  Sup.  Ct.  112,  33  L.  Ed.  363;  U.  S.  v.  Turner  (C.  C),  54  Fed.  228. 
But  appellant  contends  that  this  language  is  to  be  construed  with  an  ex- 
ception, and  that  this  exception  is  that  one  who  claims  the  land  to  be 
valuable  for  mineral  purposes  has  the  right,  notwithstanding  such  home- 
stead entry,  to  enter  thereon  and  explore  it  for  the  valuable  minerals 


1910]  McLemore  v.  Express  Oil  Co.  237 

it  is  thought  to  contain.  Herein  reliance  is  placed  upon  McClintock  v. 
Bryden,  5  Cal.  97,  with  the  note  which  is  appended  to  that  case  in  63 
Am.  Dec.  87.  But  it  will  be  found  upon  examination  that  that  and 
the  cases  like  it  all  arose  where  the  land  was  of  proved  mineral  value, 
and  the  decisions  were  based  upon  the  national  laws,  which  in  effect 
excepted  from  homestead  entry  the  mineral  lands  of  the  nation,  the  min- 
eral lands  being  those  of  more  value  for  mineral  than  for  agricultural 
purposes.  We  know  of  no  case,  and  have  been  cited  to  none,  where  a 
right  of  entry  upon  lands  held  under  an  agricultural  entry  has  been  per- 
mitted without  proof  of  the  present  value  of  the  lands  for  mineral  pur- 
poses merely  for  the  purpose  of  exploiting  them  to  see  if  perchance  they 
possess  such  value.  That  is  precisely  what  appellant  desires  here  to  do, 
and  contends  that  it  has  the  right  to  do.  No  discovery  of  oil  has  been, 
made  upon  the  lands,  but  defendant  insists  that  it  has  the  right  to  enter 
and  explore  them  to  see  if  there  is  oil  therein.  The  decisions  are  against 
the  existence  of  such  a  right.  In  Lentz  v.  Victor,  17  Cal.  273,  it  is  de- 
clared that  such  an  entry  upon  an  agricultural  holding  can  be  justified 
and  upheld  only  by  showing,  first,  that  the  land  is  public  land;  and,  sec- 
ond, "that  it  contains  mines  or  minerals."  The  Land  Department  has 
uniformly  laid  down  the  rule  to  the  following  effect:  "The  burden  of 
proof  being  upon  the  protestants  (mineral  claimants),  they  are  required 
to  show  by  a  preponderance  of  testimony  that  the  land  is  more  valuable 
for  mining  than  for  agricultural  purposes  as  a  present  fact;  not  that 
it  might  possibly  hereafter  develop  minerals  in  such  quantity,  and  of 
such  character,  as  to  establish  its  mineral  value."  1  Land  Dec.  Dep.  Int. 
561 ;  Creswell  Mining  Co.  v.  Johnson,  8  Land  Dec.  Dep.  Int.  440 ;  Dob- 
ler  v.  Northern  Pac.  R.  Co.,  17  Land  Dec.  Dep.  Int.  103;  Winscott  v. 
Northern  Pac.  R.  Co.,  17  Land  Dec.  Dep.  Int.  274;  Southern  Pac.  R.  Co., 
25  Land  Dec.  Dep.  Int.  223 ;  Alldritt  v.  Northern  Pac.  R.  Co.,  25  Land 
Dec.  Dep.  Int.  349. 

For  these  reasons  the  judgment  and  order  appealed  from  are  affirmed. 

We  concur:  LORIGAN,  J.;  MELVIN,  J. 


238  Watek  and  Mineral  Cases.  [Texas 


SIMMS  v.  REISNER  et  al. 
[Court  of  Civil  Appeals  of  Texas,  January  27,  1911.] 

—  Tex.  Civ.  — ,  134  S.  W.  278. 

1.  Oil    Lease — Abandonment   Not  Shown. 

Temporary  cessation  of  operations  under  an  oil  lease  with  the  expectation  to 
resume  work  when  more  oil  has  drained  into  the  basin  does  not  constitute  an  aban- 
donment of  the  lease. 

2.  Same — No  Question  of  Forfeiture  on  Temporary  Injunction. 

The  question  of  whether  or  not  an  oil  lease  has  been  surrendered  or  forfeited  is 
not  one  to  be  decided  on  application  for  temporary  injunction  against  operations  by 
the  lessee. 

3.  Oil   Well — Injunction   against   Unskillful   Operation. 

Statements  of  the  danger  of  an  adjoining  operator's  bringing  in  a  salt  water  well, 
without  evidence  of  his  lack  of  skill  or  knowledge  of  the  oil  field,  held  insufficient 
to  justify  a  temporary  injunction. 

Appeal  from  District  Court,  Harris  County ;  W.  P.  Hamblen,  Judge. 

Suit  for  an  injunction,  for  a  writ  of  possession,  and  for  cancellation 
of  a  lease  by  B.  A.  Reisner  and  others  against  E.  F.  Simms.  Temporary 
injunction  granted.     Defendant  appeals.     Reversed. 

For  appellant — P.  H.  Briant  and  R.  U.  Culberson. 
For  appellees — Dannenbaun  &  Taub. 

PLEASANTS,  C.  J.  This  appeal  is  from  an  order  of  the  dis- 
trict court  for  the  Fifty-fifth  Judicial  District  granting  a  temporary 
injunction  in  a  suit  in  said  court  brought  by  appellees  against  the  ap- 
pellant. 

The  following  concise  and  accurate  statement  of  the  substance  of  the 
pleadings  and  the  issues  presented  thereby,  and  of  the  proceedings  had 
in  the  lower  court  and  the  result  thereof,  is  copied  from  appellant's 
brief: 

'Tn  substance  it  was  alleged  in  the  petition  that  the  appellees  were 
the  lessees  in  a  certain  oil  and  gas  lease  on  a  tract  of  land  located  in  the 
Humble  oil  field  in  Harris  County,  Texas,  and  that  the  appellant  had 

NOTE.  I   to  Parish   Fork   Oil   Co.   v.   Bridgewater 

As  to  the  necessity  for  continued  op-      Gas  Co.,   22   Mor.   Min.  Rep,   145. 
■eration  under  oil  and  gas  leases,  see  note   ) 


1911]  Simms  v.  Eeisner  et  al.  239 

wrongfully  entered  on  the  land  covered  by  said  lease,  had  ejected  appellees 
therefrom,  and  was,  at  the  time  of  the  filing  of  the  petition,  engaged  in 
boring  an  oil  well  on  said  land. 

"It  was  admitted  in  the  petition  that  the  appellant  had  on  or  about 
the  3d  day  of  March,  1905,  entered  into  a  contract  with  one  W.  E.  Arm- 
strong, who  was  then  the  owner  of  the  land,  by  which  contract  the  right 
was  given  appellant  to  bore  for  oil  on  the  land  in  controversy.  It  was 
alleged,  however,  that  about  June,  1906,  appellant  abandoned  said  land 
because  the  production  of  oil  thereon  had  become  unprofitable,  and  had 
delivered  possession  thereof  to  the  owner,  W.  E.  Armstrong. 

"It  was  also  alleged  in  the  petition  that  appellees  were  the  owners 
of  a  producing  oil  well  on  certain  lands  adjoining  the  tract  in  contro- 
versv,  and  that,  if  appellant  was  permitted  to  continue  his  operations  on 
the  Armstrong  lease,  there  was  danger  that  salt  water  would  be  brought 
into  the  field  and  destroy  the  producing  well. 

"The  prayer  was  for  an  injunction  restraining  appellant  from  contin- 
uing to  bore  for  oil  on  the  land  in  controversy,  for  a  writ  of  possession, 
and  for  a  cancellation  of  the  lease  from  Armstrong  to  appellant. 

"A  restraining  order  was  issued  on  the  23d  of  November,  1910,  and  the 
cause  set  down  for  hearing  on  the  26th  of  November,  1910. 

"At  the  time  directed  by  the  order  of  the  judge,  the  appellant  presented 
his  answer,  under  oath,  to  the  petition.  In  this  answer  the  appellant 
claimed  that  he  had  in  all  respects  complied  with  the  terms  of  his  lease 
with  Armstrong,  had  paid  the  money  consideration  called  for  therein, 
had  put  down  more  wells  than  required  by  his  agreement,  and  had  pro- 
duced on  this  lease  a  quantity  of  oil  amounting  in  the  aggregate  to  more 
than  600,000  or  700,000  barrels.  He  denied  that  he  had  ever  terminated 
said  lease,  or  delivered  possession  of  the  land  covered  thereby  to  Arm- 
strong, or  to  Stockdick,  the  subsequent  owner,  but  claimed  that  he  had 
always  asserted  his  rights  under  his  lease  to  bore  for  oil  on  the  land. 

"Appellant  alleged  that,  though  the  wells  had  ceased  temporarily  to  be 
productive,  'it  was  his  belief  and  expectation  that  in  course  of  time  more 
oil  would  drain  into  the  basin  beneath  said  lands  from  contiguous  terri- 
tory, and  that  when  such  condition  presented  itself  it  had  always  been 
his  intention  to  bore  again  for  oil  upon  the  land  embraced  in  said  lease.' 

"He  alleged  that  the  time  having  arrived  when,  in  his  judgment,  there 
was  sufficient  accumulation  of  oil  to  justify  operations  he  began  putting 
down  a  well  on  the  Armstrong  lease,  and  was  so  engaged  when  stopped 
by  the  restraining  order  issued  in  this  cause. 

"He  alleged  that  since  the  wells  on  the  Armstrong  lease  had  watered 
out,  there  had  been  no  oil  of  consequence  produced  on  lands  adjacent 
or  near  to  said  Armstrong  land,  and  that  at  all  times  he  had  held  himself 


240  Water  and  Mineral  Cases.  [Texas 

ready  to  protect  said  lands  from  drainage  from  outside  wells,  should  any 
be  dug. 

"He  denied  that  he  was  inexperienced  in  boring  for  oil  on  the  land 
in  controversy,  or  that  there  was  any  danger  from  his  operations  that 
salt  water  would  be  brought  into  the  field. 

"The  cause  having  been  heard  on  the  petition,  answer,  and  supporting 
affidavits,  the  court,  on  November  26,  1910,  ordered  the  restraining  order 
to  continue  in  full  force  and  effect. 

"The  exhibits  attached  to  the  pleadings,  and  the  affidavits  produced  on 
the  hearing  in  the  court  below,  establish  the  following  facts: 

"On  March  3,  1905,  W.  E.  Armstrong,  who  was  then  the  owner  of 
the  property  upon  which  appellant  claims  the  right  to  bore  the  well  the 
boring  of  which  was  enjoined  by  the  court  below,  made  and  entered  into 
the  following  lease  contract  with  appellant : 

"  'The  State  of  Texas,  Harris  County :  W.  E.  Armstrong,  lessor,  in 
consideration  of  the  sum  of  twelve  hundred  and  fifty  ($1,250.00)  dollars 
in  hand  paid  by  E.  F.  Simms,  lessee,  receipt  of  which  is  hereby  acknowl- 
edged, and  of  the  further  undertakings  of  said  lessee  hereinafter  specified, 
does  hereby  let  and  lease  unto  said  lessee,  his  heirs  and  assigns,  lot  num- 
ber twenty  (20)  in  block  number  one  (1),  and  lot  number  twenty  (20) 
in  block  number  two  (2)  of  the  Cherry  subdivision  of  the  James  Strange 
survey  in  Harris  County,  Texas,  the  terms  of  this  lease  beginning  with 
this  date  and  becoming  permanent  when  the  undertakings  of  the  lessee 
hereinafter  specified  are  performed.  In  consideration  of  the  foregoing, 
the  said  lessee  hereby  agrees  and  binds  himself  to  bore  and  develop  two 
(2)  wells  upon  the  above-described  land  under  the  following  conditions, 
viz.:  He  shall  within  thirty  (30)  days  from  this  date  begin  boring  of 
the  first  well  on  said  land  and  complete  the  same  as  soon  thereafter  as 
may  be  possible  with  reasonable  diligence  and  dispatch,  and  if  said  well 
shall  produce  oil  in  flowing  quantities,  then  the  said  lessee  agrees  and 
obligates  himself  within  30  days  after  said  oil  is  first  brought  to  the  sur- 
face, to  begin  the  boring  of  another  well  on  said  tract  and  to  complete  the 
same  as  soon  thereafter  as  may  be  done  with  reasonable  diligence  and 
dispatch.  The  lessee  reserves  the  right  to  use  all  fuel,  oil,  and  gas  devel- 
oped from  either  of  said  wells  that  may  be  necessary  in  operating  and 
developing  the  same,  and  of  the  remainder  of  such  oil  and  gas  agrees 
and  obligates  himself  to  deliver  to  the  lessor  or  his  order,  free  of  charge 
in  any  pipe  line  that  may  be  convenient  or  accessible  to  said  well  one- 
fourth  (^4)  of  such  production  of  a  flowing  well  and  one-eighth  (Y&) 
of  such  production  of  a  pumping  well.  The  lessee  may  bore  other  wells 
and  produce  oil  therefrom  upon  the  same  terms  and  conditions  at  his 
option.     Should  any  mineral  and  gas  be  discovered  and  produced  on  said 


1911]  SlMMS  V.  EeISNER  ET  Alu  241 

land,  then  the  parties  hereto  shall  have  the  same  proportionate  interest 
in  such  production  as  in  the  oil  and  gas  hereinbefore  mentioned;  lessee 
may  terminate  this  lease  when  production  becomes  unprofitable  and  re- 
move al!  improvements  erected  by  him. 

"  'Witness  our  hands  in  duplicate,  at  Houston,  Texas,  March  3,  1905. 
W.  E.  Armstrong,  E.  F.  Simms/ 

"Appellant  paid  the  cash  consideration  mentioned  in  this  lease  and  imme- 
diately took  possession  of  the  property,  bored  several  wells  thereon,  and 
fully  complied  with  all  of  the  terms  and  conditions  of  the  lease  contract. 
The  wells  bored  by  him  were  large  producers  and  he  successfully  operated 
them  until  the  latter  part  of  1905,  at  which  time  an  invasion  of  water 
into  this  portion  of  the  Humble  oil  field  rendered  the  wells  there  unpro- 
ductive and  all  further  operation  and  development  ceased.  Appel- 
lant moved  his  improvements  and  machinery  from  the  property  in  con- 
troversy and  took  the  casing  from  one  of  the  wells,  but  left  the  property 
in  charge  of  Mr.  H.  A.  McAnallen  and  requested  him  to  take  possession 
of  it  and  prevent  encroachment  thereon.  McAnallen  was  in  charge  of 
the  property  continuously,  and  no  one  else  had  possession  of  it  until  ap- 
pellant returned  thereto  and  began  boring  the  well  which  he  was  enjoined 
from  boring  by  the  order  of  the  court  from  which  this  appeal  is  prose- 
cuted." 

When  the  wells  in  this  portion  of  the  field  became  ruined  by  water, 
as  before  stated,  it  was  anticipated  that  a  sufficient  quantity  of  oil  from 
other  portions  of  the  field  would  probably  find  its  way  to  this  property 
to  make  its  development  again  profitable.  Shortly  before  appellant  be- 
gan boring  the  well  in  question  appellees  had  brought  in  a  productive  well 
on  an  adjoining  lot  near  the  line  of  the  lot  in  controversy,  and  appellant 
at  once  began  to  bore  the  well  in  question  to  protect  his  lease  and  prevent 
the  oil  under  the  property  from  being  drained  into  and  brought  up 
through  appellees'  well.  On  April  25,  1907,  W.  E.  Armstrong  conveyed 
the  property  covered  by  appellant's  lease  to  A.  Stockdick  for  a  considera- 
tion of  $50,  by  deed  of  general  warranty.  On  May  27,  1910,  Stockdick 
leased  the  property  to  appellees  for  the  purpose  of  development  as  an  oil 
field,  and  appellees  are  claiming  in  this  suit  that  under  this  lease  they  are 
entitled  to  the  possession  of  the  property.  Before  his  sale  to  appellees 
Stockdick  recognized  appellant's  right  to  further  develop  the  property 
under  his  lease  and  tried  to  purchase  same,  but  they  could  not  agree  upon 
the  price.  There  is  no  evidence  that  appellant  ever  declared  that  he  had 
canceled  the  lease  or  abandoned  his  rights  thereunder,  and  neither  the 
lease  contract  nor  the  possession  of  the  property  was  ever  delivered  to 
Armstrong,  or  his  vendees. 
W.  &  M.— 16 


242  Water  and  Mineral  Cases.  [Texas 

Ed.  McCarvell,  one  of  the  plaintiffs,  swore  that  "there  was  great  dan- 
ger that  the  defendant,  because  of  his  lack  of  knowledge  of  said  field, 
will  bring  in  a  well  producing  salt  water,  and  thereby  injure  or  destroy 
the  well  now  operated  by  the  plaintiffs  on  lot  21,  as  well  as  destroy  lot 
20  and  adjoining  lot  19  as  producing  oil  land."  There  is  other  testimony 
to  the  effect  that  the  bringing  in  of  a  salt  water  well  in  any  portion  of  an 
oil  field  is  likely  to  greatly  injure  all  of  the  wells  in  the  field.  McCarvell 
does  not  give  any  facts  tending  to  show  his  knowledge  of  appellant's  skill 
as  an  oil  operator  or  of  appellant's  familiarity  and  acquaintance  with 
the  conditions  of  this  oil  field.  On  the  contrary,  the  undisputed  evidence 
of  several  witnesses  shows  that  appellant  has  been  a  successful  operator 
in  this  field,  had  bored  and  operated  a  number  of  wells  on  this  and  ad- 
joining lots,  and  there  is  no  evidence  that  he  ever  brought  in  a  salt  water 
well.  The  undisputed  evidence  further  shows  that  the  drillers  employed 
by  appellant  to  drill  the  well  in  question  "are  competent  men  in  their  line 
of  work,  and  have  had  much  experience  in  drilling  oil  wells  in  the  Hum- 
ble oil  field."  Upon  this  showing  we  do  not  think  the  trial  judge  was 
authorized  to  grant  the  injunction.  The  opinion  of  the  plaintiff  McCar- 
vell, that  there  was  danger  that  appellant,  because  of  lack  of  experience, 
might  bring  in  a  salt  water  well,  is  not  only  unsupported  by  any  fact 
in  evidence,  but  is  against  the  undisputed  testimony  before  set  out  show- 
ing that  both  appellant  and  the  drillers  employed  by  him  were  thoroughly 
competent  and  fully  acquainted  with  all  of  the  conditions  existing  in  this 

oil  field. 

We  cannot  believe  that  the  court  upon  this  evidence  found  that  there 
was  such  danger  to  the  field  and  to  appellees'  wells  from  appellant's  lack 
of  knowledge  of  the  field  and  his  incompetency  as  an  oil  operator  as 
would  justify  an  order  preventing  him  from  operating  in  said  field,  and 
appellees  do  not  so  contend  in  their  brief.  If  such  was  the  finding,  it 
cannot  be  sustained. 

The  question  of  whether  appellant  had  surrendered  or  forfeited  his 
lease,  if  that  question  is  raised  by  the  evidence,  is  not  one  which  can  be 
properly  decided  on  the  application  for  a  temporary  injunction.  Appel- 
lant was  in  possession  of  the  land,  claiming  under  his  lease.  He  did  not 
acquire  this  possession  by  force  or  fraud,  and,  so  far  as  the  evidence 
shows,  appellees  were  never  in  actual  possession  of  the  property.  An 
injunction  is  not  a  remedy  which  can  be  used  for  the  purpose  of  recov- 
ering title  or  right  of  possession  of  property,  and  it  is  not  the  function 
of  a  preliminary  injunction  to  transfer  the  possession  of  land  from  one 
person  to  another  pending  an  adjudication  of  the  title,  except  in  cases 
in  which  the  possession  has  been  forcibly  or  fraudulently  obtained  by 
the  defendant  and  the  equities  are  such  as  to  require  that  the  possession 


1911]  Simms  v.  Eeisner  et  al.  243 

thus  wrongfully  invaded  be  restored,  and  the  original  status  of  the  prop- 
erty be  preserved  pending  the  decision  of  the  issue  of  title.  Jeff  Chaison 
Town-Site  Co.  v.  McFaddin,  Wiess  &  Kyle  Land  Co.,  121   S.  W.  716. 

The  trial  court  did  not  order  the  possession  of  the  land  delivered  to 
appellees,  but  he  enjoined  the  appellant  from  using  it  for  the  purpose  for 
which  it  was  leased,  and  thereby  rendered  his  possession  worthless.  This 
should  not  be  done  unless  the  use  of  the  property  by  the  appellant  would 
cause  injury  to  appellees  against  which  they  could  only  be  adequately 
protected  by  an  injunction,  and  this,  as  we  have  before  said,  is  not  shown 
by  the  evidence. 

If  appellees  have  a  probable  right  to  the  possession  of  the  property  for 
the  purpose  of  producing  oil  therefrom  they  might  in  a  proper  proceed- 
ing have  the  oil  taken  therefrom  by  appellant  impounded  pending  the 
adjudication  of  their  right  in  same,  but  the  facts  presented  by  this  record 
do  not.  in  our  opinion,  justify  an  injunction  restraining  appellant  from 
boring  for  oil  upon  said  property. 

It  follows  that  the  order  of  the  court  granting  said  injunction  should 
be  set  aside,  and  it  has  been  so  ordered. 


244 


Water  and  Mineral  Cases. 


[Kansas 


MOUND  CITY  BRICK  &  GAS  CO.  v.  GOODSPEED  GAS  &  OIL  CO. 

[Supreme  Court  of  Kansas,  July  9,  1910] 


—  Kan. 


109  Pac.  1002. 


(Syllabus  by  the  Court.) 

1.  Taxation — Mining  Leases — Failure  to  Record  or  List — Statute  Construed 

as  Applying  to  Gas  and  Oil  Lease. 
Chapter    244    of    the    Laws    of    1897,    providing    for    the    taxation    of    strata    of 
minerals   in   land    the   title  to   which    has   been   vested   in   persons   other   than   the 
owner  of  the  surface,  and  imposing  penalties  for   its  violation,  applies  to  oil  and 
gas,   as  well   as   to   solid  minerals. 

2.  Same — Severance  of  Mineral  Strata — Duty  to  Record  and  List  Instrument 

of  Conveyance. 
When  the  different  strata  are  severed  by  contract  or  conveyance,  each  layer 
or  stratum  is  subject  to  be  taxed  separately  as  real  property,  and  it  is  the  duty 
of  the  owner  not  only  to  record  the  instrument  which  conveyed  the  property  to 
him  within  the  time  specified,  but  also  to  see  that  it  is  duly  listed  for  taxation 
at  the  proper  time. 

3.  Same — Nature  of  Instrument  Effecting  Severance  of  Mineral  Strata. 
Where  an  instrument,  called  a  "lease,"  by  which  the  owner  of  the  land  grants,  con- 
veys, and  warrants  to  another,  his  heirs,  successors,  and  assigns,  all  of  the  coal, 
oil,  and  gas  under  a  tract  of  land,  together  with  the  right  to  use  the  surface 
of  the  land  so  far  as  it  is  necessary  in  taking  out  the  minerals  so  conveyed,  the 
consideration  being  that  the  lessee  shall  give  the  lessor  certain  quantities  of  the 
coal  and  oil  mined,  also  a  certain  price  per  well  for  each  gas  well  that  shall  be 
drilled  and  used,  and  also  furnish  the  lessor  gas  sufficient  to  supply  his  residence 
and  among  other   things,   contains  a  provision  that   in  a  certain  contingency  the 


CASE  NOTE. 

Statute  Providing  that  Failure  to 
Record  Lease  or  List  Property  for 
Taxation    Renders   Lease   Void. 

I.     Construction     and     Inter- 
pretation op  Statute,  244. 
II.     Applies     to     Oil    and     Gas 
Leases,  247. 

III.  Constitutionality   of  Stat- 

ute, 248. 

IV.  Effect  of  Failure  to  List 

or  Defective  Listing,  249. 
V.     Constitutionality     of    Tax 
Statutes    Imposing     For- 
feitures, 250. 

A.  Such  Statutes  Are  Con- 
stitutional, 250. 

B.  Unconstitutional,  252. 


I.   Construction     and     Interpretation 
of  Statute. 

The  statute  under  consideration  is 
quoted  at  length  in  Mound  City  Brick 
&  Gas  Co.  v.  Goodspeed  Gas  &  Oil  Co., 
principal  case. 

This  statute  construed  and  interpreted 
by  the  Supreme  Court  of  Kansas  in  a 
suit  to  enjoin  the  sale  of  the  "mineral 
reserve"  of  certain  land,  upon  which  a 
gas  and  oil  lease  had  been  granted,  for 
taxes  assessed  on  the  mineral  estate 
separated  from  the  land,  and  to  annul 
the  tax.  The  court  held  the  statute, 
although  showing  confusion  of  thought 
and  inaccuracy  of  expression,  first  re- 
lated to  land  with  the  minerals,  of  which 
it  is  in  part  composed,  in  place  and  then 
relates    to   and    deals   with    cases   where 


1910]       Mound  City  Brick  &  Gas  Co.  v.  Gas  &  Oil  Co.  245 

lessee  shall  reconvey  the  property  to  the  lessor,  held,  that  the  instrument 
operated  to  sever  the  coal,  oil,  and  gas  from  the  remainder  of  the  land,  and 
that  the  interest  segregated  and  conveyed  became  subject  to  be  separately  taxed 
and  it  was  incumbent  on  the  owner  of  the  interest  to  list  it  for  taxation. 

Action  on  oil  and  gas  lease  in  which  defense  contended  the  same  was 
void  for  failure  to  record  it  or  list  the  property  for  taxation,  as  required 
by  the  statute.     Judgment  for  defendant.     Affirmed. 

For  appellant — Jones  and  Reid. 
For  appellee — no  appearance. 

Action  brought  by  the  Mound  City  Gas,  Coal  &  Oil  Company,  which 
had  obtained  an  oil,  coal,  and  gas  lease  upon  a  tract  of  land  of  which 
Henry  Carbon  was  the  owner,  against  the  Goodspeed  Gas  &  Oil  Com- 
pany, which  claimed  a  subsequent  lease  on  the  same  premises.  The 
following  is  a  copy  of  the  appellant's  lease: 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of  which  is 
hereby  duly  acknowledged,  and  the  covenants  and  agreements  herein- 
after contained,  Henry  Carbon,  a  widower,  of  Mound  City,  Kan.,  first 
party,  herebv  grants,  conveys  and  warrants  unto  Robert  Fleming,  second 
party,  his  heirs,  successors  and  assigns,  all  the  oil,  coal  and  gas  in  and 
under  the  following  described  premises,  together  with  the  right  to  enter 
thereon  at  all  times,  for  the  purpose  of  drilling  and  operating  for  oil,  coal, 
gas  or  water,  to  erect,  maintain  and  remove  all  buildings,  structures, 
pipes,  pipe  lines  and  machinery  necessary  for  the  production  and  trans- 
portation of  oil,  coal,  gas,  water,  provided  that  the  first  party  shall  have 


the  title  to  the  land  and  that  to  the 
minerals  has  been  severed.  It  contem- 
plates that  in  such  case  the  estate  in 
the  land  and  the  estate  in  the  minerals 
shall  exist  in  separate  persons — that  one 
should  have  an  estate  in  the  land  and 
the  other  in  the  minerals ;  and  that  in 
such  case  the  estate  of  each  should  be 
taxed  separately,  each  to  the  owner 
thereof;  that  the  whole  purpose  of  the 
act  was  taxation,  and  that  it  was  not 
framed  for  the  purpose  of  placing  leases 
of  mineral  lands  in  the  same  category 
with  mortgages  and  tax-sale  certificates; 
that  the  only  office  of  the  proviso  of  the 
law  is  to  accomplish  the  purpose  of  the 
first  portion  of  the  act — the  taxation  of 
each  estate  in  the  property,  and  that, 
therefore,    the    statute    applies    to    such 


leases  only  as  effect  a  severance  of  the 
mineral  from  the  land,  and  not  to  such 
as  give  but  a  right  to  enter,  operate  and 
procure  gas,  giving  no  title  thereto  until 
actually  found  and  severed.  In  this 
case  it  was  found  the  lease  in  question 
did  not  effect  a  severance  of  the  min- 
eral, and  created  no  separate  estate 
therein,  and  hence  the  construction  of 
the  statute  may  be  considered  to  some 
extent  dicta.  Kansas  Nat.  Gas  Co.  v. 
Board  of  Co.  Com'rs  Neosho  County,  75 
Kan.   333,  89  Pac.   570    (1907). 

The  statute  applies  to  such  leases  only 
as  effect  a  severance  of  the  title  to  the 
land  from  the  mineral  and  not  those 
leases  which  amount  to  a  mere  license, 
and  grant  only  the  right  to  exploit  the 
land  and  take  the  mineral  when  found; 


246 


Water  and  Mineral  Cases. 


[Kansas 


the  right  to  use  said  premises  for  farming  purposes,  except  such  part 
as  is  actually  occupied  by  second  party,  namely,  a  lot  of  land  situated 
in  the  township  of  the  county  of  Linn  in  the  state  of  Kansas,  and  described 
as  follows,  to  wit:  The  south  half  of  the  southeast  quarter  of  section 
five  (5),  and  the  west  half  of  section  four  (4)  all  in  township  22,  range 
24,  containing  four  hundred  acres,  more  or  less.  The  above  grant  is 
made  on  the  following  terms : 

"(1)  Said  party  agrees  to  drill  a  well  upon  said  premises  within 
two  years  from  this  date  or  thereafter  pay  to  first  party  eighty  ($80.00) 
dollars  annually  until  said  well  is  drilled,  or  this  lease  shall  be  void. 

"(1%)  Should  coal  be  found  a  royalty  of  ten  cents  per  ton  of  2,400 
pounds  for  all  coal  mined  shall  be  paid  to  said  first  party. 

"(2)  Should  oil  be  found  in  paying  quantities  upon  the  premises 
second  party  agrees  to  deliver  to  first  party  in  tanks,  or  in  pipe  lines  with 
which  it  may  connect  the  well  or  wells,  the  one-tenth  part  of  all  the  oil 
produced  and  saved  from  said  premises. 

"(3)  Should  gas  be  found,  second  party  agrees  to  pay  to  first  party, 
fifty  dollars  annually  for  every  well  from  which  gas  is  used  off  the 
premises. 

"(4)  The  first  party  shall  be  entitled  to  enough  gas  free  of  cost  for 
domestic  use  in  said  residence  on  said  premises  as  long  as  second  party 
shall  use  gas  off  said  premises,  under  this  contract,  but  shall  lay  and 
maintain  the  service  pipe  at  his  own  expense,  and  use  said  gas  at  his 
own  risk;  the  said  party  of  the  second  part  further  to  have  the  privilege 
of  excavating  for  water,  and  of  using  sufficient  water,  gas  and  oil  from 
the  premises  herein  leased  to  run  the  necessary  engines  for  the  prose- 
cution of  said  business. 


under  the  latter  no  title  to  the  mineral 
vests  until  it  is  found  and  severed  from 
the  land.  Cherokee  &  Pittsburg  Coal  & 
Min.  Co.  v.  Board  of  Co.  Com'rs  Craw- 
ford County,  71  Kan.  276,  80  Pae.  601 
(1905);  Kansas  Nat.  Gas  Co.  v.  Board 
of  Co.  Comrs.  Neosho  County,  75  Kan. 
333,  89  Pac.  570   (1907). 

Under  Kansas  statute  a  lease  does  not 
become  void  by  a  mere  failure  to  record 
it,  but  only  where  there  is  the  additional 
delinquency  of  omitting  to  list  it  for 
taxation.  Mound  City  Brick  &  Gas  Co. 
v.  Goodspeed  Gas  &  Oil  Co.,  principal 
case. 

Statute  of  Ohio  providing  that  all 
leases,  licenses  or  assignments  thereof, 
or  of  any  interest  therein,  whereby  any 


right  to  sink  or  drill  wells  for  natural 
gas  or  petroleum  is  given  be  forthwith 
recorded,  and  that  unless  so  recorded 
they  be  invalid  unless  the  person  claim- 
ing thereunder  be  in  the  actual  and  open 
possession  of  the  property,  etc.,  was  held 
valid;  and  it  was  further  held  that  the 
statute  applied  to  a  renewal  of  a  lease 
under  the  provision  of  the  original  lease, 
therefore  a  subsequent  lessee  would  hold 
as  against  the  renewal  where  the  same 
was  not  recorded,  and  the  original  lessee 
was  not  in  the  actual  and  open  posses- 
sion of  the  property.  Northwestern  Ohio 
Nat.  Gas.  Co_  v.  City  of  Tiffin,  59  Ohio 
St.  420,  54  N.  E.  77    (1899). 

Under   the    statute   mentioned   in   the 
case  last  cited   it  was  held  an  assignee 


1910]       Mound  City  Brick  &  Gas  Co.  v.  Gas  &  Oil  Co. 


247 


"(5)  Second  party  shall  bury,  when  requested  to  do  so  by  first  party,  all 
gas  lines  used  to  connect  gas  off  said  premises,  and  pay  all  damages  to 
timber  and  crops  by  reason  of  drilling  and  burying,  repairing  or  removal 
of  lines  of  pipe  over  said  premises. 

"(6)  No  well  shall  be  drilled  nearer  than  300  feet  to  any  building  now 
on  said  premises,  nor  occupy  more  than  two  acres. 

"(7)  Second  party  may  at  any  time  reconvey  the  premises  hereby 
granted,  first  removing  any  of  his  property  that  may  be  thereon  and 
thereupon   this  instrument  shall  be  null  and  void. 

"(8)  A  deposit  to  the  credit  of  the  lessor  in  Farmers'  &  Merchants' 
Bank,  Mound  City,  Kan.,  to  the  amount  of  any  of  the  money  payments 
herein  provided  for,  shall  be  payment  under  the  terms  of  this  lease. 

"(9)  If  no  well  shall  be  drilled  upon  said  premises  within  ten  years 
from  this  date,  second  party  agrees  to  reconvey  and  thereupon  this  in- 
strument shall  be  null  and  void. 

"(10)  First  party  reserves  to  himself  all  oil  and  gas  now  on  said 
premises,  together  with  the  right  to  drill  wells  on  said  premises  for 
products  to  be  used  on  said  premises  for  domestic  purposes. 

"In  witness  whereof,  the  parties  hereunto  set  their  hands  this  

day  of  June,  A.  D.  1902.  Henry  Carbon." 

The  execution  of  the  foregoing  instrument  was  duly  acknowledged. 
An  assignment  of  the  lease  to  persons  who  organized  the  Mound  City 
Gas,  Coal  &  Oil  Company  was  alleged.  Among  other  defenses,  the 
Goodspeed  Gas  &  Oil  Company  alleged  that  the  lease  above  set  forth  was 
not  recorded  nor  listed  for  taxation  within  90  days  after  its  execution 
and  has  never  been  listed  for  taxation.     Afterwards  the  Mound  City 


for  the  benefit  of  creditors  would  take 
title  to  the  lease  over  a  former  assign- 
ment to  secure  an  indebtedness,  where  no 
possession  was  taken  and  the  first  as- 
signment was  not  recorded.  Keystone 
Bank  v.  Union  Oil  Co.,  25  Ohio  Cir.  Ct. 
464   (1903). 

Statute  providing  that  upon  failure  to 
receive  any  bid  at  a  sale  for  delinquent 
taxes  the  right,  title  and  interest  of 
every  person,  whomsoever,  therein  shall 
vest  absolutely  in  the  state,  held  to  give 
the  state  only  a  lien  for  the  unpaid 
taxes.  State  v.  Heman,  70  Mo.  441 
(1879). 

Where  owners  of  lease  fail  to  record 
or  list  it  for  taxation,  it  may  be  de- 
clared void  at  the  instance  of  any  in- 
terested    party.     Mound    City    Brick    & 


Gas    Co.   v.    Goodspeed    Gas    &    Oil    Co., 
principal    case. 

For  the  origin,  reasons  and  history  of 
the  law,  see  King  v.  Mullins,  171  U.  S. 
404,  18  Sup.  Ct.  925,  42  L.  Ed.  214 
(1898);  Fay  v.  Crozier,  156  Fed.  486 
(1907). 

II.   Applies    to    Oil    and    Gas    Leases. 

A  statute  providing  that  where  the 
fee  to  the  surface  of  any  land  is  in 
one  person  and  the  title  to  any  minerals 
therein  in  another,  the  right  to  such 
minerals  shall  be  valued  and  listed  sep- 
arately from  the  fee  of  the  land,  and 
making  it  the  duty  of  the  owner  of  the 
title  to  the  minerals  to  list  the  same 
for  taxation,  and  providing  that  any 
lease  thereof  not  recorded  within  ninety 


248 


Water  and  Mineral  Cases. 


[Kansas 


Brick  &  Gas  Company  was  substituted  for  the  Mound  City  Gas,  Coal  & 
Oil  Company;  the  title  and  interest  of  the  latter  company  having  passed 
to  the  substituted  company.  The  court  on  motion  of  the  defendant 
gave  judgment  on  the  pleadings  in  favor  of  the  Goodspeed  Gas  &  Oil 
Company,  and  the  Mound  City  Brick  &  Gas  Company  appeals. 

JOHNSTON,  C.  J.  (after  stating  the  facts  as  above).  The 
only  question  presented  for  consideration  is  whether  the  failure  of  ap- 
pellant to  have  the  lease  in  question  recorded  within  90  days  after  its 
execution  and  to  have  the  property  listed  for  taxation  renders  the  lease 
null  and  void.  The  trial  court,  it  is  stated,  held  that  the  lease  was  void 
for  noncompliance  with  chapter  244  of  the  Laws  of  1897  (Gen.  St.  1909, 
§  9334)-  It  reads:  "That  where  the  fee  to  the  surface  of  any  tract, 
parcel  or  lot  of  land  is  in  any  person  or  persons,  natural  or  artificial, 
and  the  right  or  title  to  any  minerals  therein  is  in  another  or  in  others, 
the  right  to  such  minerals  shall  be  valued  and  listed  separately  from  the 
fee  of  said  land,  in  separate  entries  and  descriptions,  and  such  land 
itself  and  said  right  to  the  minerals  therein  shall  be  separately  taxed  to 
the  owners  thereof  respectively.  The  register  of  deeds  shall  furnish 
to  the  county  clerk,  who  shall  furnish  on  the  first  day  of  March  each 
year  to  each  assessor  where  such  mineral  reserves  exist  and  are  a  matter 
of  record,  a  certified  description  of  all  such  reserves :  Provided,  that 
when  such  reserves  or  leases  are  not  recorded  within  ninety  days  after 
execution,  they  shall  become  void  if  not  listed  for  taxation." 

This  provision  has  been  interpreted  and  its  validity  upheld.  Mining 
Co.  v.  Crawford  County,  71  Kan.  276,  80  Pac.  601 ;  Gas  Co.  v.  Neosho 


days  after  execution  shall  become  void 
if  not  listed  for  taxation,  includes  within 
its  operation  oil  and  gas  leases,  and  they 
become  void  if  the  statute  is  not  com- 
plied with.  Mound  City  Brick  &  Gas 
Co.  v.  Goodspeed  Gas  &  Oil  Co.,  princi- 
pal case.  Cherokee  &  Pittsburg  Coal  & 
Min.  Co.  v.  Board  of  Co.  Comrs.  Craw- 
ford County,  71  Kan.  276,  80  Pac.  601 
(1905)  ;  Kansas  Nat.  Gas  Co.  v.  Board 
of  Co.  Comrs.  Neosho  County,  75  Kan. 
333,  89  Pac.  570    (1907). 

Although  oil  and  gas  in  place  is  part 
of  the  realty,  the  stratum  in  which 
they  are  found  is  capable  of  severance, 
and  the  party  to  whom  such  stratum 
is  conveyed  acquires  an  estate  and  title 
therein,  which  becomes  a  subject  of 
taxation.     Mound  City  Brick  &  Gas  Co. 


v.  Goodspeed  Gas  &    Oil    Co.,  principal 
case. 

III.  Constitutionality  of  Statute. 

Statute  providing  that  lease  of  min- 
eral, when  separated  from  the  fee,  shall 
be  void  unless  recorded  and  listed  for 
taxation  within  a  certain  period,  is  con- 
stitutional and  valid.  Mound  City  Brick 
&  Gas  Co.  v.  Goodspeed  Gas  &  Oil  Co., 
principal  case. 

The  statute  is  not  unconstitutional  as 
providing  an  unequal  and  inequitable 
valuation  and  assessment,  because  when 
properly  construed  it  does  not  mean 
that  where  both  the  fee  and  the  mineral 
are  in  one  person  the  mineral  is  not  to 
be  taxed,  but  is  to  be  taxed  only  when 
the   fee   is    in   one    and   the   mineral   in 


1910]       Mound  City  Brick  &  Gas  Co.  v.  Gas  &  Oil  Co. 


249 


County,  75  Kan.  335,  89  Pac.  750.  It  is  argued  that  the  act  was  only 
intended  to  apply  to  solid  minerals,  such  as  coal,  lead,  and  zinc,  and  that 
because  of  their  peculiar  attributes  oil  and  gas  are  not  capable  of  own- 
ership in  place  and  cannot  have  been  within  the  legislative  purpose.  The 
terms  of  the  act  are  broad  enough  to  embrace  minerals  of  every  kind, 
and  it  is  well  settled  that  oil  and  gas,  although  fugitive  fluids,  are  min- 
erals. Zinc  Co.  v.  Freeman,  69  Kan.  691,  76  Pac.  1130;  Murray  v.  Allred, 
100  Tenn.  100,  43  S.  W.  355,  39  L.  R.  A.  249,  66  Am.  St.  Rep.  740. 

It  has  also  been  determined  that,  although  oil  and  gas  in  place  are  a 
part  of  the  realty,  the  stratum  in  which  they  are  found  is  capable  of 
severance,  and  by  an  appropriate  writing  the  owner  of  the  land  may 
transfer  the  stratum  containing  oil  and  gas  to  another.  Such  party 
acquired  an  estate  in  and  title  to  the  stratum  of  oil  and  gas,  and  there- 
after it  becomes  the  subject  of  taxation,  incumbrance,  or  conveyance. 
Kurt  v.  Lanyon,  72  Kan.  60,  82  Pac.  459 ;  Moore  v.  Griffin,  y2  Kan.  164, 
83  Pac.  395,  4  L.  R.  A.  (N.  S.)  477;  Barrett  v.  Coal  Co.,  70  Kan.  649, 
79  Pac.  150;  Chartiers'  Block  Coal  Co.  v.  Mellon,  152  Pa.  286,  25  Atl. 
597,  18  L.  R.  A.  702,  34  Am.  St.  Rep.  645. 

It  being  competent  for  an  owner  of  land  by  contract  or  conveyance  to 
sever  an  underlying  layer  or  stratum  of  oil  or  gas  from  other  parts  of 
the  land,  and  thus  vest  the  title  of  the  layer  in  another,  there  remains 
the  question  whether  the  writing  executed  by  Henry  Carbon  is  sufficient 
to  accomplish  a  severance  of  the  mineral  from  the  remainder  of  the  land. 
The  ordinary  agreement  giving  the  lessee  the  right  to  enter  and  explore 
for  oil  and  gas  and  to  sever  and  own  any  that  may  be  found,  paying 
a  royalty  to  the  owner  of  the  land,  is  a  license,  which  does  not  operate 


another.  In  other  provisions  of  the  tax 
laws  provision  is  made  for  taxing  lands 
(which  includes  the  mineral  when  not 
severed)  at  their  full  value.  The  act 
under  consideration  was  passed  to  meet 
a  newly  developed  class  of  property,  and 
in  order  that  all  property  might  be  re- 
quired to  bear  its  just  proportion  of 
the  burden  of  taxation.  Cherokee  & 
Pittsburg  Coal  &  Min.  Co.  v.  Board  of 
Co.  Comrs.  Crawford  County,  71  Kan. 
276,   80  Pac.   601    (1905). 

The  statute  is  not  void  as  containing 
no  provision  for  the  ascertainment  of 
the  value  of  the  mineral  property  for 
the  purposes  of  taxation.  The  act  is 
supplementary  to  the  general  tax  laws 
of  the  state  and,  as  all  statutes  in  pari 
materia  are  to    be    read    and    construed 


together,  if  any  provisions  for  its  com- 
plete enforcement  be  found  wanting  in 
the  act  itself  they  may  be  found  in  the 
general  tax  laws  of  the  state.  Cherokee 
&  Pittsburg  Coal  &  Min.  Co.  v.  Board 
of  Co.  Comrs.  Crawford  County,  71  Kan. 
276,  80  Pac.  601    (1905). 

IV.    Effect    of    Failure   to    List    or 
Defective  Listing. 

Where  the  owner  has  in  good  faith 
attempted  to  list  the  property,  it  will 
not  be  held  forfeited  because  of  some 
irregularity  in  the  proceeding.  Lohr  v. 
Miller,   12  Gratt.    (Va.)    452    (1855). 

There  can  be  no  forfeiture  for  non- 
entry  for  taxation  of  the  estate  in  min- 
erals severed  by  lease  where  the  assessor 
fails  to  charge  it  separate  from  the  fee 


250 


Water  and  Mineral  Cases. 


[Kansas 


as  a  severance  of  the  minerals.  In  Gas  Co.  v.  Neosho  County,  supra,  the 
act  providing  for  taxing  separate  mineral  interests  in  lands  was  consid- 
ered, and  it  was  there  pointed  out  that  a  lease  of  the  type  just  mentioned 
grants  no  estate,  gives  no  title,  does  not  operate  to  sever  the  oil  and  gas 
from  the  land,  and  is  therefore  not  separately  taxable  to  the  lessee. 
On  the  other  hand,  attention  is  called  to  another  class  of  writings  which 
do  transfer  an  estate  in  the  mineral  and  operate  to  sever  the  ownership 
of  the  oil  and  gas  from  the  ownership  of  the  surface.  It  will  be  observed 
that  the  lease  in  question  gives  more  than  a  license,  more  than  an  in- 
corporeal hereditament.  It  "grants,  conveys  and  warrants  unto  Robert 
Fleming,  second  party,  his  heirs,  successors  and  assigns,  all  the  oil,  coal 
and  gas  in  and  under  the  following  described  premises."  In  connection 
with  the  grant,  the  right  is  given  to  enter  and  use  the  surface  so  far  as 
may  be  necessary  for  the  second  party  to  avail  himself  of  the  use  and 
benefit  of  the  part  conveyed.  The  consideration  was  a  certain  quantity 
of  the  coal  and  oil  produced  and  a  certain  amount  annually  for  each  gas 
well  used,  together  with  gas  sufficient  to  supply  the  residence  of  the 
grantor.  In  another  paragraph  of  the  instrument  provision  is  made  for 
the  reconveyance  of  the  premises  by  the  second  party;  it  being  stipulated 
that  if  no  well  is  drilled  within  10  years  he  shall  reconvey  the  property 
to  the  first  party,  and  when  this  is  done  the  instrument  first  made  shall 
be  null  and  void.  There  is  also  a  provision  that  the  first  party  reserves 
to  himself  oil  and  gas  for  his  own  use  on  the  premises  for  domestic  pur- 
poses. 

The  language  of  the  instrument  is  manifestly  that  of  a  grant  and  not  of 
a  license.     It  purports  to  convey  all  of  the  coal,  oil,  and  gas  underneath 


in  the  land,  and  the  owner  of  the  land 
is  charged  with  and  pays  on  the  full 
value  of  the  land  with  the  minerals  in- 
cluded. The  payment  upon  the  full  value 
is  a  satisfaction  and  the  object  of  the 
law  has  been  accomplished.  State  V. 
Low,  46  W.  Va.  451,  33  S.  E.  271 
(1899). 

V.   Constitutionality  of  Tax  Statutes 
Imposing  Forfeitures. 

A.    Such  Statutes  Are  Constitutional. 

Statutes  providing  for  the  forfeiture 
of  property  for  failure  to  list  it  for 
taxation  or  for  the  nonpayment  of  taxes 
thereon,  have  been  often  upheld  and  de- 
clared constitutional. 

United  States.— Bennett  v.  Hunter,  76 
TJ.    S.     (9    Wall.)     326,    19    L.    Ed    672 


(1870)  ;  King  &  Mullins,  171  U.  S.  404, 
18  Sup.  Ct.  925,  43  L.  Ed.  214  (1898)  ; 
Schenk  v.  Peay,  1  Dill.  267  (partial  re- 
port), Fed.  Cas.  No.  12,451,  full  report 
(1869)  ;  Van  Gulden  v.  Virginia  Coal  & 
Iron  Co.,  52  Fed.  838,  3  C.  C.  A.  294, 
8  U.  S.  App.  229  (1892)  ;  Lasher  v.  Mc- 
Creery,  66  Fed.  834  (1895)  ;  Fay  &  Cro- 
zer,  156  Fed.  486  (1907);  Miller  v. 
Ahrens,  163  Fed.  870   (1908). 

Arkansas. — Kelly  v.  Sallinger,  53  Ark. 
114    (1890). 

Florida. — Dickerson  v.  Acosta,  15  Fla. 
614    (1876). 

Kansas. — Cherokee  &  Pittsburg  Coal 
&  Min.  Co.  v.  Board  of  Co.  Comrs. 
Crawford  County,  71  Kan.  276,  80  Pac. 
601  (1905);  Kansas  Nat.  Gas  Co.  v. 
Board  Co.    Com'rs    Neosho    County,    75 


1910]       Mound  City  Brick  &  Gas  Co.  v.  Gas  &  Oil  Co. 


251 


the  tract  of  land,  instead  of  a  privilege  or  license  to  prospect  for  and  to 
sever  and  own  so  much  of  it  as  the  lessee  might  find.  It  transfers  at 
once  and  makes  him  the  owner  of  the  minerals  under  this  tract  of  land 
— a  very  different  thing  from  giving  him  the  right  to  prospect  and  to 
own  only  that  which  he  finds  and  brings  to  the  surface.  The  character 
of  the  instrument  is  indicated  to  some  extent  by  the  fact  that  the  grant, 
together  with  the  accompanying  rights  and  privileges,  was  extended 
to  the  heirs,  successors,  and  assigns  of  the  grantee.  Then  there  is  the 
reservation  of  oil  and  gas  for  domestic  purposes,  by  which  the  grantor 
proceeds  on  the  theory  that  he  is  taking  back  something  out  of  that 
which  was  granted  and  which  would  have  passed  to  the  grantee  but  for 
the  reservation.  The  name  by  which  the  writing  is  designated  is  not  a 
matter  of  great  consequence,  as  what  is  called  a  "lease"  may  as  effectually 
transfer  the  minerals  underneath  a  tract  of  land  as  a  more  formal  in- 
strument of  conveyance.  A  severance  such  as  the  statute  in  question 
contemplates  may  be  made  by  an  exception  or  reservation  in  a  deed,  or 
by  an  express  grant  in  any  other  instrument.  In  Sanderson  v.  Scranton, 
105  Pa.  469,  where  there  was  an  agreement  by  an  owner  leasing  all  of 
the  coal  under  the  surface  of  land  and  providing  that  a  certain  quantity 
should  be  mined  by  the  lessee  each  year,  that  monthly  payments  should 
be  made  by  the  lessee  in  proportion  to  the  quantity  mined,  and  extending 
the  rights  and  privileges  conferred  by  the  lease  to  the  heirs,  excutors, 
administrators,  and  assigns,  it  was  held  "that  this  agreement  was  not 
merely  a  license  or  lease  to  mine  coal  to  become  the  lessee's  when  mined, 
but  it  operated  as  such  a  severance  of  the  surface  and  subjacent  strata, 


Kan.  335,  89  Pac.  750  (1907);  Mound 
City  Brick  &  Gas  Co.  v.  Goodspeed, 
principal  case. 

Kentucky. — Barbour  &  Nelson,  11  Ky. 
(1  Litt.)  60  (1822);  Robinson  v.  Huff, 
13  Ky.  (3  Litt.)  38  (1823);  Marshall 
v.  McDonald,  75  Ky.  (12  Bush)  378 
(1876);  Kentucky  Union  Co.  v.  Com- 
monwealth, 33  Ky.  L.  Rep.  9,  49,  108  S. 
W.  931  (1908),  rehearing  denied  33  Ky. 
L.  Rep.  5S7,   110  S.  W.  931    (1908). 

Louisiana. — Hall  v.  Hall,  23  La.  Ann. 
135  (1871)  ;  Morrison  v.  Larkin,  26  La. 
Ann.  699   (1874). 

Maine.— Hodgdon  v.  Wight,  36  Me.  326 
(1853);  Tolman  v.  Hobbs,  68  Me.  316 
(1878). 

South  Carolina. — State  v.  Thompson, 
18  S.  C.  538  (1882);  Owens  v.  Owens, 
25  S.  C.  155    (1886). 


Virginia. — Kinney  v.  Beverly,  2  Hen. 
&  M.  (Va.)  318  (1808);  Staat's  Lessee 
v.  Board,  10  Gratt.  (Va.)  400  (1853); 
Wild  v.  Serpell,  10  Gratt.  (Va.)  405 
(1853);  Hale  v.  Branscun,  10  Gratt. 
(Va.)  418  (1853);  Smith's  Lessee  v. 
Chapman,  10  Gratt.  (Va.)  445  (1853); 
Lohr  v.  Miller,  12  Gratt.  (Va.)  452 
(1855)  ;  Usher's  Heirs  v.  Pride,  15  Gratt. 
(Va.)     421     (1858). 

West  Virginia.— Smith  &  Thorp,  17  W. 
Va.  221  (1880);  Holley  River  Coal  Co. 
v.  Howell,  36  W.  Va.  489  (1892); 
Yokum  v.  Fickey,  37  W.  Va.  762,  17 
S.  E.  318  (1893);  State  v.  Cheney,  45 
W.  Va.  478,  31  S.  E.  920  (1898)  ;  State 
v.  Swann,  46  W.  Va.  128,  33  S.  E.  89 
(1899),  affirmed  188  U.  S.  739,  23  Sup. 
Ct.  848,  47  L.  Ed.  677  (1903);  State 
v.   Sponaugle,  45  W.  Va.  415,  32  S.  E\ 


252 


Watee  and  Minekal  Cases. 


[Kansas 


and  a  sale  or  assignment  of  the  coal  in  place,  as  would  relieve  the  owner 
of  the  surface  from  responsibility  for  taxes  levied  upon  the  coal."  See, 
also,  Peterson  v.  Hall,  57  W.  Va.  535,  50  S.  E.  603. 

We  see  no  difference  in  applying  the  act  to  cases  such  as  this,  where 
the  underlying  strata  of  land  have  become  vested  in  different  owners. 
Counsel  for  appellant  says  the  lease  or  reserve  must  be  taxed,  if  at  all, 
as  personal  property,  and  suggest  difficulties  in  determining  the  situs 
of  such  property.  It  is  the  interests  or  estates  severed  and  created  which 
are  to  be  taxed,  and  not  the  instrument  creating  the  separate  interests. 
In  Gas  Co.  v.  Neosho  County,  supra,  it  was  demonstrated  that  the  min- 
eral rights  carved  out,  and  which  were  to  be  subject  to  taxation,  were 
to  be  treated  as  realty,  and  not  as  personal  property.  It  was  said :  "It 
is  contemplated  that  there  shall  be  an  estate  consisting  of  what  is  left 
after  the  mineral  rights  have  been  carved  out,  and  that  there  shall  be 
an  estate  consisting  of  the  mineral  rights  which  have  been  segregated. 
The  statute  further  contemplates  that  each  estate  must  vest  in  a  separate 
person.  The  respective  proprietors  are  called  'owners,'  and  the  estate 
in  the  minerals  is  nothing  short  of  the  right  or  title  to  the  minerals  them- 
selves as  they  lie  in  the  ground."  In  Mining  Co.  v.  Crawford  County, 
supra,  it  was  suggested  that  there  would  be  difficulty  in  enforcing  the 
act  and  in  the  assessment  of  such  segregated  property;  but  the  sugges- 
tion was  met  by  saying  that  the  value  of  such  property  might  be  ascer- 
tained and  the  assessment  made  under  the  general  rules  governing  the 
assessment  of  real  property.  As  it  is  the  interest  in  the  land,  and  not  the 
instrument,  which  transfers  the  interest  that  is  taxed,  the  indefiniteness 


283  (1898);  State  v.  Low,  46  W.  Va. 
451,  33  S.  E.  271  (1899)  ;  Suit  v.  Hoch- 
stetter  Oil  Co.,  63  W.  Va.  317;  61  S.  E. 
307  (1908). 

For  a  discussion  of  the  constitution- 
ality of  statutes  for  enforcing  taxation 
with  reference  to  the  guaranty  of  "due 
process  of  law,"  see  McMillan  v.  An- 
derson, 95  U.  S.  37,  24  L.  Ed.  335 
(1877);  Hagar  v.  Reclamation  District, 
111  U.  S.  701,  4  Sup.  Ct.  663,  28  L.  Ed. 
569  (1884)  ;  Cincinnati,  N.  0.  &  T.  P.  R. 
Co.  v.  Kentucky,  115  U.  S.  321,  6  Sup. 
Ct.  57,  29  L.  Ed.  414  (1885)  ;  King  v. 
Mullins,  171  U.  S.  404,  18  Sup.  Ct.  925, 
43   L.  Ed.   214    (1898). 

B.      Unconstitutional. 

Griffin  v.  Mixon,  38  Miss.  424  (1860), 
holds  statutes  for  the  forfeiture  to  the 


state  for  failure  to  pay  taxes  to  be  a 
violation  of  the  provisions  of  the  bill 
of  rights  prohibiting  the  taking  of  pri- 
vate property  for  public  use  without 
just  compensation,  reviewing  the  adju- 
dicated cases  on  the  subject. 

Martin  v.  Snowden,  18  Gratt.  (Va.) 
127  (1868),  holds  that  congress  has  not 
the  constitutional  power  to  impose  an 
absolute  forfeiture  for  the  nonpayment 
of  taxes  assessed  or  levied  by  it.  The 
power  to  provide  for  a  sale  of  property 
is  limited  to  the  object  thereof,  and 
therefore  there  can  be  no  provision  for  a 
sale  of  the  whole  property  where  it  is 
divisible,  and  the  sale  of  a  part  is  suf- 
ficient to  pay  the  delinquent  tax. 

As  to  petroleum  and  natural  gas  being 
minerals,  see  note  to  Whiting  v.  Straup, 
p.  — ,  vol.  2,  this  series. 


1910]       Mound  City  Brick  &  Gas  Co.  v.  Gas  &  Oil  Co. 


253 


which  counsel  see  in  the  act  largely  disappears.  The  lease  does  not 
become  void  by  the  mere  failure  to  record  it,  but  only  when  there  is  the 
additional  delinquency  of  omitting  to  list  it  for  taxation.  If  it  is  re- 
corded as  the  statute  enjoins,  the  taxing  officer  has  an  opportunity  to 
find  and  assess  the  property  conveyed  by  it,  and  if  the  owners  omit  to 
record  the  lease,  and  further  omit  to  list  it,  and  thus  bring  it  to  the 
attention  of  the  taxing  officials  within  the  time  fixed  for  listing  property, 
the  lease  then  becomes  void  and  may  be  so  declared  by  the  court  at  the 
instance  of  any  interested  party. 

As  the  owner  of  the  interest  in  question  failed  to  record  the  lease 
within  the  prescribed  time,  and  also  failed  to  list  the  property  for  tax- 
ation, the  lease  was  a  nullity,  and  the  judgment  of  the  trial  court  deciding 
that  it  was  void  will  be  affirmed.    All  the  justices  concurring. 


As  to  the  nature  of  the  title  of  the 
lessee  under  gas  and  oil  leases,  see  part 
VII  of  note  to  Bellevue  Gas  &  Oil  Co. 
v.  Pennell,  post,  p.  403. 

As  to  peculiar  rules  of  construction 
applied  to  oil  and  gas  leases,  see  note 
to  Bellevue  Gas  &  Oil  Co.  v.  Pennell, 
post,  p.  396. 

As  to  construction  of  lease  for  a  cer- 
tain term  and  "so  long  as  oil  and  gas 
are  found  in  paying  quantities,"  see  note 


to  McGraw  Oil  &  Gas  Co.  v.  Kennedy, 
p. ,  vol.  2,  this  series. 

As  to  exploration,  development  and 
operation  required  under  gas  or  oil  lease, 

see  note  to  Mills  v.  Hartz,  p.  ,  vol. 

3,  this  series. 

As  to  the  effect  of  nonexistence  or 
exhaustion  of  the  mineral  on  gas  and  oil 
leases,  see  note  to  Bannan  v.  Graeff, 
post,  p.  548. 


254  Water  and  Mineral  Cases.  [Oklahoma 


CHItlSTY  v.  UNION  OIL  &  GAS  CO. 

[Supreme   Court  of  Oklahoma,  March   21,    1911.] 
— Okla.  — ,   114  Pae.  740. 

1.  Mechanics'    Liens — Statutory. 

The  law  relating  to  mechanics'  liens  is  entirely  statutory  and  parties  claiming 
rights  thereunder  must  bring  themselves  within  the  plain  terms  of  the  law. 

2.  Same — Subcontractor's   Right   in   Oil   or   Gas    Leasehold. 

Under  a  statute  giving  a  subcontractor  a  right  of  lien  on  an  oil  or  gas  leasehold 
to  the  same  extent  as  the  original  contractor,  an  agreement  that  there  shall  be  no 
liability  until  the  work  is  completed  is  equally  binding  on  the  subcontractor. 

Error  from  the  District  Court,  Kay  County ;  Wm.  M.  Bowles,  Judge. 

Action  to  foreclose  a  lien  by  Gus  Christy  against  the  Union  Oil  &  Gas 
Company.     Judgment  for  defendant.     Plaintiff  brings  error.     Affirmed. 

For  plaintiff— Pratt,  Moss  &  Turner. 

For  defendant — Tetirick  &  Curran. 

DUNN,  J.  This  case  presents  error  from  the  district  court  of 
Kay  County.  September  28,  1906,  plaintiff  in  error,  as  plaintiff,  filed 
his  petition  against  defendant  in  error  as  defendant,  and  Earnshaw  & 
Kevan,  as  partners,  for  the  purpose  of  foreclosing  a  subcontractor's  lien. 
For  the  purpose  of  this  case  it  was  conceded  that  the  owner  of  the  lease- 
hold was  not  indebted  to  the  contractor  who  employed  plaintiff,  due  to 
the  fact  that  he  had,  without  the  fault  of  the  owner,  abandoned  the  work; 
the  contract  provided  that  until  the  work  was  completed  the  owner  should 
be  under  no  liability  to  the  contractor.  It  was  further  conceded  that 
the  terms  of  the  contract  were  known  to  the  plaintiff  at  the  time 
he  was  doing  the  work,  and  at  the  time  he  filed  his  lien;  and  that  at  the 
time  he  began  his  action  he  knew  that  under  the  specific  terms  of  the 
contract  the  owner  owed  the  contractor  nothing.  The  question  therefore 
arises,  under  these  conditions,  Is  the  plaintiff  entitled  to  enforce  a  lien 
on  the  leasehold  for  the  value  of  the  services  which  he  rendered  the  con- 
tractor ? 


NOTE. 

On  the  rights    of    laborers    and    ma- 
terial  men   to   a   lien   on    mine   and   im- 


Blankman,  20  Mor.  Min.  Rep.  4C1. 
Services  for  which  mechanics'  liens  are 
allowed,  see  note  to  Gray  v.  New  Mexico 


„,         .        _       Pumice  Stone  Co.,  ante,  p.  157 
provements,    see    note    to    Chappius    v.  1 


1911]  Christy  v.  Unio^  Oil  &  Gas  Co.  255 

The  law  relating  to  the  Hens  of  mechanics  is  statutory,  and  its  scope, 
operation,  and  effect,  measured  by  the  terms  of  the  written  law.  Toledo 
Novelty  Works  v.  Bernheimer,  8  Minn.  118  (Gil.  92).  And  implications 
extending  the  operation  thereof  in  favor  of  subcontractors  are  not  fa- 
vored; parties  claiming  rights  thereunder  are  required  to  show  that  they 
come  or  bring  themselves  within  the  plain  terms  of  the  law,  and  where 
they  do  not  they  are  excluded  from  its  benefits.  Phillips  on  Mechanics' 
Liens,  §  45 ;  Shields  v.  Morrow,  51  Tex.  393 ;  Ayres  et  al.  v.  Revere  et  al., 
25  N.  J.  Law  474.  The  section  of  the  statute  under  which  the  plaintiff 
claims  his  right  to  recover  is  section  2,  art.  5,  c.  28,  p.  324,  Session  Laws 
of  Oklahoma,  1905  (section  6171,  Comp.  Laws  Okla.  1909),  which 
reads  as  follows :  "Any  person,  copartnership  or  corporation  who  shall 
furnish  such  machinery  or  supplies  to  a  subcontractor  under  a  contractor, 
or  any  person  who  shall  perform  such  labor  under  a  subcontract  with 
a  contractor  or  who  as  an  artisan  or  day  laborer  in  the  employ  of  such 
contractor  and  who  shall  perform  any  such  labor,  may  obtain  a  lien  upon 
said  leasehold  for  oil  and  gas  purposes  or  any  gas  pipe  line  or  any  oil 
pipe  line  from  the  same  tank  (time)  and  in  the  same  manner  and  to  the 
same  extent  as  the  original  contractor  for  the  amount  due  him  for  such 
labor,  as  provided  in  section  1  of  this  act  (6170)." 

The  same  session  of  the  legislature  passed  an  act,  article  1  of  chapter 
28,  Session  Laws  of  Oklahoma,  1905,  which  related  to  the  general  subject 
of  mechanics'  liens.  Section  2  of  that  act  (section  6153,  Comp.  Laws 
Okla.  1909),  in  so  far  as  the  same  is  pertinent  to  this  discussion,  is  as 
follows :  "Any  person  who  shall  furnish  any  such  material  or  perform 
such  labor  under  a  subcontract  with  the  contractor,  or  as  an  artisan  or 
day  laborer  in  the  employ  of  such  contractor,  may  obtain  a  lien  upon 
such  land,  or  improvements,  or  both,  from  the  same  time,  in  the  same  man- 
ner, and  to  the  same  extent  as  the  original  contractor,  for  the  amount 
due  him  for  such  material  and  labor  *  *  *  by  filing  with  the  clerk 
of  the  district  court  of  the  county  in  which  the  land  is  situated,  within 
sixty  days  after  the  date  upon  which  material  was  last  furnished  or  labor 
last  performed  under  such  subcontract,  a  statement,  verified  by  affidavit. 
*  *  *  Immediately  upon  the  filing  of  such  statement  the  clerk  of  the 
district  court  shall  enter  a  record  of  the  same  in  the  docket  provided  for 
in  section  6152,  and  in  the  manner  therein  specified,  that  the  owner  of 
any  land  affected  by  such  lien  shall  not  thereby  become  liable  to  any 
claimant  for  any  greater  amount  than  he  contracted  to  pay  the  original 
contractor." 

The  latter  act  was  approved  March  13,  1905,  while  the  former,  which 
related  particularly  to  the  performing  of  labor  or  furnishing  of  materials 
or  supplies  to  owners  of  leaseholds  for  oil  and  gas  purposes,  and  for 


256  Water  and  Mineral  Cases.  [Oklahoma 

material  and  labor  for  the  building  of  pipe  lines,  was  approved  March  15, 
1905,  and  it  is  the  argument  and  contention  of  counsel  for  plaintiff  that, 
notwithstanding  section  2  of  both  acts  contains  the  language  that  the  lien 
shall  obtain  "from  the  same  time,  in  the  same  manner,  and  to  the  same 
extent  as  the  original  contractor  for  the  amount  due  him  for  such  labor," 
that  it  was  the  intention  of  the  legislature  in  the  passage  of  the  act  re- 
lating to  oil  and  gas,  that  the  subcontractor  might  secure  a  lien,  inde- 
pendent of  whether  the  owner  of  the  leasehold  or  property  was  indebted 
to  the  contractor,  and  that  this  intention  was  made  manifest  by  the  ab- 
sence from  what  may  be  termed  the  oil  and  gas  act,  of  the  following  lan- 
guage contained  in  the  other,  "that  the  owner  of  any  land  affected  by  such 
lien  shall  not  thereby  become  liable  to  any  claimant  for  any  greater 
amount  than  he  contracted  to  pay  the  original  contractor,"  the  argument 
made  being  that,  both  acts  having  been  passed  at  the  same  session  of  the 
legislature,  that  effect  in  the  construction  of  this  act  must  of  necessity 
be  given  to  the  absence  therein  of  the  language  mentioned  quoted  from 
the  other,  and  that  if  effect  is  given  to  it  plaintiff  would  be  entitled  to  re- 
cover against  the  defendants  herein,  notwithstanding  the  fact  that  un- 
der the  contract  which  it  had  made  to  secure  the  performance  of  the 
work  it  owed  absolutely  nothing  to  the  man  with  whom  it  dealt. 

We  cannot  agree  with  counsel.  The  act  is  an  act  covering  a  specific 
subject,  and  the  construction  which  counsel  seek  to  have  placed  thereon 
is  one  which,  if  within  the  intent  of  the  legislature,  should,  and  we  be- 
lieve would,  have  been  made  manifest  in  language  of  plain  and  unam- 
biguous meaning,  and  not  left  to  conjecture  or  implication.  In  addition  to 
the  fact  that  language  is  lacking  clearly  fixing  the  liability  contended  for, 
it  is  to  be  observed  that  the  section  involved  allows  the  part  to  contain  a 
lien  "from  the  same  tank  (time)  and  in  the  same  manner  and  to  the 
same  extent  as  the  original  contractor."  This,  it  appears  to  us,  mani- 
fested a  clear  intention  on  the  part  of  the  legislature  to  relieve  the  lease- 
holder from  any  liability  in  addition  to  that  which  he  had  voluntarily  as- 
sumed in  his  contract,  or  for  which  he  was  otherwise  legally  liable,  and 
left  a  subcontractor  to  his  remedy  against  his  employer  for  all  services 
rendered  or  material  furnished  in  excess  thereof. 

Speaking  generally  on  this  subject,  Phillips  on  Mechanics'  Liens  (2d1 
Ed.)  §  45,  says:  "But  few  presumptions  are  made  in  favor  of  subcon- 
tractors, and  they  must  invariably  show  that  they  come  within  the  plain 
words  of  the  law.  When  they  do  not,  they  will  be  excluded  from  its 
benefits.  Thus,  where  all  the  previous  statutes  of  a  state  contemplated 
a  lien  only  in  favor  of  an  original  contractor,  with  the  right  to  a  subcon- 
tractor to  give  notice  to  the  owner  of  his  claim,  and  then  bring  a  personal 
action  against  the  owner  for  the  unpaid  balance,  it  was  held  that  a  law 


1911]  Christy  v.  Union  Oil  &  Gas  Co.  257 

providing  that  'any  person  or  firm,  artisan  or  mechanic,  who  may  labor 
or  furnish  materials  to  erect  any  house  shall  have  a  lien,'  etc.,  did  not 
extend  the  lien  to  subcontractors  on  the  ground  that  the  provisions  of 
the  law  ought  to  be  positive  and  express,  to  authorize  an  unlimited  lien 
on  an  owner's  property,  where  there  was  no  privity  of  contract,  and 
irrespective  of  the  amount  of  the  original  contract." 

In  support  thereof  there  is  cited  the  case  of  Shields  v.  Morrow,  supra. 
The  plaintiff,  who  was  a  subcontractor,  relied  upon  an  act  of  the  Texas 
Legislature,  dated  November  17,  1871  (Paschal's  Dig.,  art.  71 12).  He 
had  brought  his  action  against  the  owner  of  the  land  to  enforce  his  lien 
for  services  rendered  and  material  furnished  as  a  painter  and  glazier. 
Construing  the  act,  which  it  will  be  noted  lacks  the  limitations  contained 
in  our  statute,  and  in  support  of  the  proposition  which  we  have  laid 
down  above  that,  to  make  a  party  liable  in  excess  of  his  express  con- 
tract, the  provisions  of  law  should  be  positive  and  certain,  and  not  be 
left  to  mere  implication,  the  Supreme  Court  of  Texas  said:  "So  much 
of  this  act  as  is  necessary  for  the  purpose  of  this  opinion  provides  that 
any  person  or  firm,  artisan  or  mechanic,  who  may  labor,  furnish  material, 
machinery,  fixtures  and  tools  to  erect  any  house  improvements,  or  to  re- 
pair any  building  or  article  or  any  improvement  whatever,  shall  have  a 
lien  on  such  article,  house,  building,  fixtures  or  improvements,  and  shall 
also  have  a  lien  on  the  lot  or  lots  or  land  necessarily  connected  there- 
with, to  secure  payment  for  labor  done,  material  and  fixtures  furnished 
for  construction  or  repairs.  In  order  to  fix  and  secure  the  lien  herein 
provided  for,  the  contractor,  mechanic,  laborer,  or  artisan  furnishing  ma- 
terial shall  have  the  right  at  any  time  within  six  months  after  such  debt 
becomes  due  to  file  his  contract  in  the  office  of  the  district  clerk  of  the 
county  in  which  such  property  is  situated,  and  cause  the  same  to  be  re- 
corded in  a  book  to  be  kept  by  the  district  clerk  for  that  purpose.  If 
the  contract  be  verbal,  a  duplicate  copy  of  the  bill  of  particulars  shall 
be  made  under  oath,  one  to  be  filed  and  recorded  as  provided  for  writ- 
ten contracts,  and  the  other  to  be  served  upon  the  party  owing  the  debt. 
The  material  question  arising  upon  the  demurrer,  and  which  is  decisive 
of  the  case,  is  this :  Is  a  subcontractor  who  supplies  work  and  material 
upon  a  building  not  under  a  contract  with  the  owner,  but  with  the  master 
builder  alone,  entitled,  under  the  provisions  of  the  above  act,  to  the  me- 
chanic's lien,  for  the  payment  thereof,  upon  the  lot  and  buildings?  This 
character  of  lien  is  not  given  by  the  common  law,  but  depends  upon  stat- 
ute. Pratt  v.  Tudor,  14  Tex.  39.  *  *  *  It  may  be  very  seriously 
doubted,  indeed,  whether  the  legislature  has  the  power,  as  contended 
by  counsel  for  appellant,  to  establish  and  fix  a  lien  on  property,  as  against 
the  owner,  in  favor  of  a  subcontractor,  between  whom  there  was  no 
W.  &  M— 17 


258  Water  and  Mineral  Cases.  [Oklahoma 

privity  of  contract,  for  any  greater  amount  than  was  due  by  the  owner 
to  the  principal  contractor  at  the  date  when  notice  of  the  intention  to  thus 
fix  the  lien  was  given  to  the  owner.  If  this,  under  any  principles  of 
justice,  could  be  done  at  all,  the  provisions  of  the  law  should  be  positive 
and  express  to  authorize  the  courts  to  give  it  this  construction,  and  not 
be  left,  as  in  this  statute  of  November  17,  1871,  to  mere  implication. 
To  give  this,  in  connection  with  the  previous  statutes  upon  the  same 
subject-matter,  the  construction  now  placed  upon  it  by  the  court  fully 
meets  all  of  its  reasonable  requirements;  gives,  with  the  use  of  proper 
diligence,  ample  protection  to  the  subcontractor;  and  at  the  same  time 
protects  the  just  rights  of  the  owner  of  the  property.  To  give  it  the 
construction  contended  for  by  counsel  for  the  appellant  jeopardizes  the 
property  of  the  owner  to  the  risk  of  a  lien,  made  without  his  knowledge 
or  consent,  which  may  be  extended  indefinitely  by  the  contract  of  a  third 
party,  perhaps  entirely  unknown  to  him,  and  for  the  payment  of  a  claim 
which  he  had  long  before  settled  in  good  faith  with  the  principal  con- 
tractor,  and   in   accordance   with   their   deliberate   agreement." 

The  law  relating  to  mechanics'  liens  as  has  been  noted  is  purely  of 
statutory  origin,  and  is  not  uniform  among  the  states  of  the  Union.  Some 
legislatures  have  passed  acts  authorizing  a  subcontractor  to  recover 
for  his  labor  and  material  and  to  have  a  lien  impressed  upon  the  property 
improved  without  reference  to  the  contract  between  the  owner  and  the 
original  contractor.  The  constitutionality  of  such  acts,  although  mooted, 
has  been  by  the  courts  sustained ;  but,  in  order  that  a  man's  property  may 
have  a  lien  impressed  upon  it  without  his  direct  knowledge  and  in  excess 
of  a  definite  specific  contract,  it  occurs  to  us  that  the  law  under  which 
it  is  effected  should  be  couched  in  such  clear  and  unambiguous  terms 
that  every  man  intending  to  improve  should  and  would  know  when  he 
deals  with  his  contractor  that  he  constitutes  of  him  a  vice  principal,  en- 
dowed with  authority  to  subject  his  property  to  the  liens  of  all  whom 
he  may  select  to  furnish  material  or  labor  thereon,  and  this  without  ref- 
erence to  the  owner's  specific  contract.  In  the  case  at  bar  defendant 
never  intended  to  assume  the  burden  which  is  here  sought  to  be  placed 
upon  it.  This  fact  was  known  to  plaintiff  when  he  contracted,  and  he 
knew  that  he  was  not  entitled  under  the  contract  made  to  the  benefit 
which  he  now  seeks  to  secure,  and,  concluding  as  we  do  that  the  statute 
relied  on  does  not  confer  on  him  the  right  which  he  claims,  the  judgment 
of  the  trial  court  is  accordingly  affirmed. 

TURNER,  C.  J.,  and  KANE  and  HAYES,  JJ.,  concur.  WILLIAMS, 
J.,  not  participating. 


1910]        Barton  et  al.  v.  Laclede  Oil  &  Mining  Co. 


259 


BARTON  et  al.  v.  LACLEDE  OIL  &  MINING  CO. 

[Supreme  Court  of  Oklahoma,  November  16,  1910.] 

—  Okla.  — ,  112  Pac.  965. 

1.     Oil  and  Gas  Lease  Construed. 

A  contract  allowing  to  the  plaintiff  one-tenth  portion  of  each  prospective  gas  well, 
when  utilized  and  sold  off  the  premises,  held  not  satisfied  by  an  agreement  with 
another  party  to  convey  and  market  the  gas  for  50  per  cent,  and  the  payment  of 
5  per  cent,  to  the  plaintiff. 

Error  from  Creek  County  Court;  Josiah  J.  Davis,  Judge. 

Assumpsit  on  a  gas  contract  brought  by  R.  L.  Barton  and  others 
against  the  Laclede  Oil  &  Mming  Company.  Judgment  for  defendant. 
Plaintiff  brings  error.     Reversed  and  remanded. 

For  plaintiff  in  error — McDougal,  Lattimore  &  Lytle. 

WILLTAMS,  J.  On  the  22d  day  of  September,  1908,  the  plain- 
tiffs in  error  as  plaintiffs  instituted  an  action  in  the  county  court  of  Creek 
County  against  the  defendant  in  error  as  defendant  on  a  certain  contract, 
which  in  part  provided :  "It  is  further  agreed  that,  if  gas  is  obtained  and 
utilized,  the  consideration  in  full  of  the  party  of  the  first  part  shall  be 
one-tenth  portion  of  each  and  every  gas  well  drilled  on  the  premises 
herein  described  when  utilized  and  sold  off  the  premises,  payable  monthly 
as  long  as  gas  is  to  be  so  utilized."'  Said  contract  was  executed  on  the 
1st  day  of  May,  1906,  and  thereafter  gas  was  found  on  said  premises, 
and  on  the  17th  day  of  December,  1907,  the  Laclede  Oil  &  Mining  Com- 
pany, as  party  of  the  first  part,  and  the  Bellevue  Oil  &  Gas  Company  of 
Independence,  Kan.,  as  party  of  the  second  part,  without  the  consent  of 
the  plaintiffs  in  error,  entered  into  a  contract  wherein  the  defendant 
in  error  agreed  to  sell  gas  to  the  said  Bellevue  Gas  &  Oil  Company  that 
was  discovered  under  the  said  lease  with  the  plaintiffs  in  error,  the  same 
to  be  received  by  the  said  the  Bellevue  Gas  &  Oil  Company  at  certain 
rates,  it  being  provided  "that  for  the  gas  used  (by  the  Bellevue  Gas  & 
Oil  Company)  shall  be  paid  the  one-half  portion  of  the  proceeds  of 
collection  arising  from  the  use  and  sale  of  gas  each  month  for  the  month 


NOTE. 

For    particular    rules    of    construction 
applied  to   oil   and   gas   leases   see   note 


to  Bellevue  Gas  &  Oil  Company  v.  Pen- 
nell,  post,  p.  396. 


260  Wateb  and  Minekal  Cases.  [Oklahoma 

preceding."  In  other  words,  the  defendant  in  error  contracted  with  the 
plaintiffs  in  error  that,  "if  gas  is  obtained  and  utilized"  from  their  land, 
"the  consideration  in  full  of  the  party  of  the  first  part  shall  be  one-tenth 
portion  of  each  and  every  gas  well  drilled  on  the  premises"  described  in 
said  contract  "when  utilized  and  sold  off  the  premises,  payable  so  long  as 
gas  is  to  be  so  utilized." 

The  defendant  in  error  having  contracted  with  the  Bellevue  Oil  & 
Gas  Company  of  Independence,  Kan.,  without  the  consent  of  the  plaintiffs 
in  error,  to  give  it  50  per  cent,  for  piping  and  selling  said  gas,  if  its  con- 
tention be  correct,  it  would  result  in  the  plaintiffs  in  error  obtaining 
merely  5  per  cent,  of  said  gas  when  "utilized  and  sold  off  the  premises." 
We  think  that  the  contract  means  just  what  it  says,  that  the  plaintiffs  in 
error  were  entitled  to  one-tenth  of  said  gas  when  "utilized  and  sold  off 
the  premises,"  and  that  it  was  incumbent  upon  the  defendant  in  error 
to  sell  and  to  pay  the  plaintiffs  in  error  one-tenth  of  the  proceeds. 

The  judgment  of  the  lower  court  is  reversed,  and  this  cause  is  re- 
manded, with  instructions  to  enter  judgment  in  favor  of  the  plaintiffs 
in  error.    All  the  justices  concur. 


1904] 


Seibeet  v.  Lovell  et  al. 


261 


SEEBERT  v.  LOVELL  et  al. 

[Supreme  Court  of  Iowa,  December  13,  1904.] 
92  Iowa  507,  61  N.  W.  197. 

1,  Drainage    District — Jurisdiction    of    Supervisors — Withdrawal    of    Peti- 

tioner. 

The  jurisdiction  of  a  board  of  supervisors  to  establish  a  drainage  district  vests 
upon  the  filing  of  the  petition,  and  this  cannot  be  ousted  by  attempted  withdrawal 
of  the  petition  after  it  is  filed. 

2.  Same — Residence  of  Petitioners. 

The  drainage  statute  does  not  provide  that  petitioners  should  reside  near  the  land 
proposed  to  be  improved  or  be  interested  in  the  proposed  improvement,  but  only  that 
one  hundred  legal  voters  of  the  county  should  sign  the  petition  in  order  to  set  the 
machinery  of  the  law  in  motion. 


CASE   NOTE. 

Powers  of  Commissioners,  Etc. 

I.  Power     Statutory — Strict 
Compliance,  262. 

II.  Substantial  Compliance,  262. 

III.  Immaterial     How    Proceed- 

ings Start,  263. 
IV.  Jurisdiction  —  When    Vests, 

263. 
V.  Jurisdiction    from    Situs  op 

Land,  263. 

VI    Disqualifications    of    Com- 
missioner, 264. 
VII.  Must    Find     Jurisdictional 

Facts,  264. 
VIII.  Discretion    Not    Arbitrary, 
265. 
IX.  Reconsidering  Action,  265. 
X.  Withdrawal  of  Petitioners, 
265. 
XI.  Dismissing  Proceedings,  265. 
XII.  No  Jurisdiction  to  Fix  Dam- 
ages, 266. 
XIII.  Power   Continuing  One,  266., 
XIV.  To  Change  System,  266. 
XV.  To  Use  Old  Ditch,  267. 
XVI.  To  Use  Natural  Stream,  267. 
XVII.  To  Build  Levees  or  Impound 

Debris,  267. 
XVIII.  Enlargement  of   Old  Ditch, 
268. 
XIX.  Division      of    Tract  for  As- 
sessment, 268. 
XX.  Assessment     Before      Work 

Completed,  268. 
XXI.  Power     to   Assess     Strictly 
Construed,  268. 


As  to  the  legal  character  of  drainage 
districts,  see  note  to  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
ante,  p.   107. 

As  to  constitutional  power  to  establish 
drains  and  drainage  districts,  see  note 
to  Chicago,  B.  &  Q.  R.  Co.  v.  Board  of 
Supervisors  of  Appanoose  County,  post, 
p.   459. 

As  to  source  of  legislative  power  to 
drain  lands,  see  note  to  Coffman  v.  St. 
Frances  Drainage  District,  vol.  3,  this 
series. 

As  to  whether  action  in  regard  to 
drainage  is  legislative  or  judicial,  see 
note  to  Smith  v.  Claussen  Park  Drain- 
age &  Levee  District,  vol.  2,  this  series. 

As  to  notice  required  as  due  process 
of  law,  see  note  to  Ross  v.  Board  of 
Supervisors  of  Wright  County,  post,  p. 
358. 

As  to  necessity  that  public  benefit 
and  interest  must  be  involved,  see  note 
to  Campbell  v.  Youngson,  vol.  3,  this 
series. 

As  to  inclusion  or  exclusion  of  lands 
in  drainage  district,  see  note  to  Hull  v. 
Sangamon  River  Drainage  District,  post, 
p.   593. 

As  to  conclusiveness  of  decision  of 
drainage  commissioners  and  other  offi- 
cers, see  note  to  Chapman  &  Dewey  Land 
Co.  v.  Wilson,  vol.  2,  this  series. 


262 


Wateb  and  Mineral  Cases. 


[Iowa 


3.     Statutes — Courts   Cannot   Cure    Defective. 

A  court  cannot  override  the  plain  provisions  of  a  statute,  and  if  it  is  defective 
and  the  rights  of  citizens  are  not  properly  protected,  resort  must  be  had  to  the  leg- 
islature for  relief. 

Writ  of  certiorari  to  test  proceedings  of  board  of  supervisors  in  estab- 
lishing drainage  districts.  Judgment  for  defendant  in  lower  court, 
affirmed. 

For  appellant — Richard  Wilbur  and  C.  L.  Nelson. 

For  appellee — W.  E.  Bradford. 


As  to  waiver  of  irregularities  in  drain- 
age proceedings,  see  note  to  Smith  v. 
Claussen  Park  Drainage  &  Levee  Dis- 
trict, vol.  3,  this  series. 

As  to  bonds  of  drainage  districts,  see 
note  to  Sisson  v.  Board  of  Supervisors 
of  Buena  Vista  County,  vol.  3,  this 
series. 

For  1  storical  review  of  reclamation 
districts  in  California,  see  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, post,  p.  107. 

I.     Power   Statutory — Strict   Compli- 
ance. 

The  powers  of  commissioners  in  drain- 
age matters  are  derived  solely  from  the 
statute  and  they  have  such  authority 
only  as  is  vested  in  them  by  the  statute. 
Woodruff  v.  Fisher,  17  Barb.  (N.  Y.) 
224    (1853). 

In  establishing  drainage  districts,  the 
court  to  whom  the  power  is  delegated, 
derives  its  jurisdiction  from  the  statute 
alone.  No  presumption  arises  to  support 
its  action  in  any  particular.  Every 
essential  fact  must  be  affirmatively 
shown  by  the  record  in  order  to  give  the 
court  jurisdiction.  Payson  v.  People, 
175  111.  267,  51  N.  E.  588  (1898)  ;  Illinois 
Cent.  R.  Co.  v.  Hasenwinkle,  232  111.  224, 
83  N.  E.  815,  15  L.  R.  A.  (N.  S.) 
129  (1908)  ;  Spring  Creek  Drainage  Dist. 
v.  Highway  Commissioners,  238  111.  521, 
87  N.  E.  394  (1909);  Morgan  Creek 
Drainage  Dist.  Comm'rs  v.  Hawley,  240 
111.  123,  88  N.  E.  465   (1909) ;  Drummer 


Creek  Drainage  Dist.  v.  Roth,  244  111.  68, 
91  N.  E.  63    (1910). 

In  establishing  drainage  districts,  the 
county  court  derives  its  jurisdiction 
from  the  statute  and  no  presumption 
can  arise  to  support  its  action  in  any 
particular,  and  only  those  lands  can  be 
included  therein  or  added  thereto  which 
the  statute  provides  may  be  so  included 
or  added.  People  ex  rel.  Croft  v.  Karr, 
244  111.  374,  91  N.  E.  485    (1910). 

Drainage  commissioners  derive  their 
powers  from  the  statute  and  must  strict- 
ly follow  the  statute,  hence  meeting  out- 
side the  territory  of  the  district,  unless 
allowed  by  statute,  is  void.  People  ex 
rel.  Cline  v.  Camp,  243  111.  154,  90  N. 
E.   215    (1909). 

In  levying  an  assessment,  the  com- 
missioners must  strictly  pursue  the 
powers  granted  by  statute,  and  where  the 
statute  provides  for  an  estimate  by  the 
commissioners  of  the  amount  necessary 
to  maintain  a  drain  for  the  ensuing  year, 
and  thereupon  to  levy  assessment  for 
that  amount,  an  assessment  which  in- 
cludes moneys  to  be  raised  for  other  pur- 
poses is  void.  McDougall  v.  Bridges,  52 
Wash.  396,  100  Pac.  835    (1909). 

As  to  delegation  by  legislature  of  pow- 
er to  commissioners,  see  note  III,  B. 
2,  to  Chicago  B.  &  Q.  R.  Co.  v.  Board  of 
Supervisors  of  Appanoose  County,  post, 
p.   459. 

II.   Substantial  Compliance. 

The  law  providing  for  formation  of 
reclamation  district  must  be  substantial- 


1904] 


Seibert  v.  Lovell  et  al. 


263 


KINNE,  J.  But  two  questions  need  be  considered  on  this  appeal :  First, 
when  was  jurisdiction  obtained  over  the  subject-matter  of  the  action; 
and,  second,  if  jurisdiction  once  attached,  could  the  power  of  the  board 
to  act  be  defeated,  by  any  subsequent  action  on  part  of  a  part  of  the 
petitioners,  by  their  protesting  or  remonstrating  or  withdrawing  their 
names  from  the  petition,  so  "as  to  reduce  the  number  of  petitioners  below 
the  one  hundred  required  by  the  statute  ?  The  law,  in  reference  to  the  es- 
tablishment of  drains,  levees,  ditches,  and  water  courses  is  found  in  chap- 
ter 2  of  title  io  of  the  Code  of  1873,  and  in  chapter  186  of  the  Acts  of  the 
Twentieth  General  Assembly.  As  amended,  the  statute  requires  that 
"whenever  the  petition  of  one  hundred  legal  voters  of  the  county,  setting 


ly  complied  with  before  there  is  any 
power  to  assess  the  land.  Assessment 
cannot  be  sustained  on  the  ground  that 
the  district  is  a  de  facto  corporation. 
Reclamation  Dist.  No.  537  of  Yolo 
County  v.  Burger,  122  Cal.  442,  55  Pac. 
156     (1898). 

In  order  to  justify  assessment  there 
must  have  been  a  substantial  compliance 
with  the  law  in  forming  the  district. 
Reclamation  Dist.  No.  537  v.  Burger, 
122  Cal.  442,  55  Pac.   156    (1898). 

As  to  disregarding  slight  irregularities 
see  note  VI  to  Chapman  &  Dewey  Land 
Co.  v.  Wilson,  vol.  2,  this  series. 

III.  Immaterial   How  Proceedings 
Start. 

The  enactment  of  the  legislature  pre- 
emptorily  ordering  the  imposition  of 
local  taxes  for  the  accomplishment  of 
local  purposes  does  not  depend  for  its 
validity  upon  the  question  whether  it 
was  based  upon  the  petition  of  a  major- 
ity or  less  than  a  majority  of  the  citi- 
zens to  be  affected  by  it,  or  without  a 
petition  from  any,  or  merely  upon  the 
general  knowledge  of  the  legislature. 
Slack  v.  Marysville  &  L.  R.  Co.,  52  Ky. 
(13  B.  Mon.)  26  (1852);  Cyprus  Pond 
Draining  Co.  v.  Hooper,  59  Ky.  (2  Met.) 
350    (1859). 

As  to  it  being  immaterial  at  whose 
instance  proceedings  are  commenced,  see 
note  VII  to  Campbell  v.  Youngson,  vol. 
2,  this  series. 


IV.    Jurisdiction — When  Vests. 

Jurisdiction  to  create  a  drainage  dis- 
trict is  to  be  determined  from  the  peti- 
tion when  filed,  and  cannot  be  affected  by 
the  attempted  withdrawal  of  certain  of 
the  signers  thereof.  Seibert  v.  Loyell, 
principal   case. 

The  jurisdiction  to  establish  a  drain- 
age district  is  to  be  determined  from 
the  petition  when  it  was  filed,  and  with- 
out regard  to  subsequent  acts  of  the 
parties  thereto.  The  jurisdiction  at- 
taches upon  the  filing  of  the  petition  and 
therefore  certain  of  the  parties  thereto 
cannot  defeat  the  formation  of  the  dis- 
trict by  withdrawing  their  names  from 
the  petition.  Sim  v.  Rosholt,  16  N. 
Dak.  77,  112  N.  W.  50,  11  L.  R.  A. 
(N.  S.)    372    (1907). 

The  fact  that  some  of  the  freeholders 
signed  a  petition  under  misapprehension 
of  its  effect,  such  not  appearing  on  the 
face  of  the  paper,  does  not  render  it  in- 
effective to  confer  jurisdiction.  Hink- 
ley  v.  Bishopp,  152  Mich.  256,  114  N.  W. 
676   (1908). 

V.  Jurisdiction  from  Situs  of  Land. 
The  jurisdiction  of  a  justice  of  the 
peace  in  drainage  matters  is  determined 
by  the  location  of  the  land  or  the  rights 
thereon  that  it  is  supposed  to  impair. 
It  is  wholly  immaterial  in  what  county 
the  lands  which  it  is  desired  to  drain, 
lie.  It  is  only  to  those  over  which  it 
is  sought  to  construct  the  ditch  that  the 


264 


Water  and  Mineral  Cases. 


[Iowa 


forth  that  any  body  or  district  of  land  in  said  county  *  *  *  is  subject  to 
overflow ;  or  too  wet  for  cultivation ;  and  that  in  the  opinion  of  petitioners 
the  public  health,  convenience  or  welfare  will  be  promoted  by  draining 
or  leveeing  the  same,  and  also  a  bond  *  *  *  shall  be  filed  with  the  county 
auditor,  he  shall  appoint  a  competent  engineer  or  commissioner  who 
shall  proceed  to  examine  said  district  of  lands,  and  if  he  deem  it  advisable 
to  survey  and  locate  such  ditches,  drains,  levees,  embankments  and 
changes  in  the  direction  of  water  courses  as  may  be  necessary  for  the 
reclamation  of  such  lands  or  any  part  thereof.  *  *  *"  Section  2,  c.  186, 
Acts  Twentieth   General   Assembly.     After  the  commissioner   files   his 


jurisdiction  relates,  and  therefore  when 
lands  sought  to  be  drained  lie  in  one 
county  and  those  over  which  the  drain- 
age ditch  will  run  in  another  county, 
the  justice  of  the  latter  county  has  juris- 
diction. Lile  v.  Gibson,  91  Mo.  App. 
480     (1901). 

VI.    Disqualification  of  Commissioner. 

Owning  property  within  the  district 
is  not  a  disqualification  to  act  as  com- 
missioner of  the  district.  People  ex 
rel.  Chapman  v.  Sacramento  Drainage 
District,  155  Cal.  373,  103  Pac.  207,  p. 
107,  this  volume. 

Authority  in  drainage  commissioners 
to  pass  upon  the  question  of  the  en- 
largement of  a  district  is  to  a  limited 
extent,  to  have  the  question  determined 
by  an  interested  tribunal,  but  the  in- 
terest is  so  small  and  insignificant  that 
the  law  does  not  regard  it.  Scott  v. 
People  ex  rel.  Lewis,  120  111.  129,  11 
N.  E.  408    (1887). 

That  one  of  the  drainage  commission- 
ers owned  land  within  the  district  is 
not  a  disqualification.  The  legislature 
could  grant  the  right  upon  any  condition 
that  it  saw  fit  to  impose.  The  tribunal 
to  whom  the  power  is  delegated  may  be 
given  unqualified  authority  in  respect 
thereto  so  long  as  it  proceeds  within 
its  appropriate  sphere.  None  of  the 
rules  disqualifying  judges  or  jurors  have 
any  application  to  such  a  situation.  State 
ex  rel.  Dorgan  v.  Fiske,  15  N".  D.  219, 
107  N.  W.  191    (1906). 


VII.  Must  Find  Jurisdictional  Facts, 
A  petition  in  the  form  and  by  the 
parties  required  by  law  is  necessary  to 
vest  jurisdiction  in  supervisors  to  form 
a  district.  Reclamation  Dist.  No.  537 
v.  Burger,  122  Cal.  442,  55  Pac.  156 
(1898). 

Unless  the  requirements  of  the  stat- 
utes are  complied  with,  supervisors  can 
obtain  no  jurisdiction  in  the  matter 
of  organizing  a  drainage  district.  Where 
the  statute  requires  it,  a  petition  by  a 
majority  of  the  residents  interested  in 
the  improvement  is  essential  and  the 
supervisors  must  find  the  petition  was 
signed  by  the  requisite  nuanber.  If 
the  record  fails  to  show  this,  they  have 
acquired  no  authority  to  act,  as  the 
existence  of  facts  upon  which  jurisdic- 
tion wholly  depends  will  not  be  pre- 
sumed. Richman  v.  Board  of  Super- 
visors of  Muscatine  County,  70  Iowa  626, 
26    N.    W.    24    (1885). 

Before  a  ditch  can  be  established  it  is 
necessary  that  the  supervisors  or  other 
body  to  whom  the  authority  is  delegated 
determine  that  such  ditch  is  demanded 
by  or  will  conduce  to  the  public  health 
or  welfare.  State  ex  rel.  Witte  v.  Curtis, 
86  Wis.  140,  56  N.  W.  475   (1893). 

Unless  a  general  law  for  drainage  of 
wet  lands  makes  proper  provision  for  de- 
termination in  each  proceeding  of  the 
question  whether  the  particular  ditch  or 
system  of  drainage  will  be  a  public  util- 
ity or  promote  the  public  health,  welfare 
and   convenience,    it   is   unconstitutional 


1904] 


Seibeet  v.  Lovell  et  al. 


265 


report  showing  the  necessity  for  the  improvement,  the  probable  cost,  etc., 
it  is  provided  that  "the  county  auditor  shall  immediately  thereafter, 
cause  notice  in  writing  to  be  served  on  the  owner  of  each  tract  of  land 
along  the  route  of  the  proposed  levee,  ditch,  drain  or  change  in  the  di- 
rection of  such  water  course,  who  is  a  resident  of  the  county,  of  the  pen- 
dency and  prayer  of  such  petition,  and  the  session  of  the  board  of  super- 
visors at  which  the  same  will  be  heard,  which  notice  shall  be  served 
ten  days  prior  to  said  session."  Code,  §  1208.  By  section  1209  of  the 
Code  it  is  provided  that  the  supervisors,  at  the  session  set  for  such  hear- 
ing, shall,  if  they  find  the  preceding  section  to  have  been  complied  with, 


and  void.  Gifford  Drainage  Dist.  v. 
Shroer,  145  Ind.  572,  44  N.  E.  636 
{1896). 

VIII.    Discretion  Not  Arbitrary. 

The  discretion  given  commissioners  in 
the  assessment  of  lands  is  not  an  arbi- 
trary one,  but  a  discretion  in  determin- 
ing what  lands  are  benefited  and  tha 
extent  thereof,  and  if  they  include  in 
their  assessment  lands  which  clearly  are 
not  benefited,  they  exceed  the  authority 
vested  in  them.  People  ex  rel.  More 
v.  County  Court  of  Jefferson  County,  51 
Barb.    136     (1867). 

IX.    Reconsidering  Action. 

The  board  of  commissioners  may  re- 
consider its  action  in  finding  that  a 
drain  will  be  for  the  benefit  of  the  pub- 
lic, and  find  that  it  will  not  be  so,  if 
no  rights  of  third  persons  have  inter- 
vened. State  ex  rel.  Sullivan  v.  Ross, 
82   Neb.    414,    118   X.    W.    85    (1908). 

X.    Withdrawal   of   Petitioners. 

Up  to  the  final  order  establishing  the 
district,  withdrawal  may  be  allowed  by 
the  court  upon  application  and  such 
terms  as  may  be  just.  In  re  Central 
Drainage  Dist.,  Cush  v.  Krunschke,  134 
Wis.   130,   113  N.  W.  675    (1907). 

It  seems  that  on  principle,  an  initial 
promoter  of  the  organization  of  a  drain- 
age district  should  not  be  absolutely 
bound  to  stand  therefor  after  the  coming 
in  of  the  report  of  the  commissioners  in 
case    of    his    having    reasonable    ground 


in  the  judgment  of  the  court  for  with- 
drawing his  support.  It  may  well  be 
that  such  a  person  cannot  capriciously 
or  unreasonably  withdraw  and  thereby 
prevent  the  consummation  of  the  enter- 
prise, to  the  prejudice  of  others  concern- 
ed as  petitioners  or  commissioners.  In 
re  Central  Drainage  Dist.,  Cush  V. 
Krunschke,  134  Wis.  130,  113  ST.  W. 
675    (1907). 

Jurisdiction  attaches  when  the  petition 
is  filed  and  cannot  be  devested  by  cer- 
tain of  the  petitioners  withdrawing  or 
remonstrating  after  it  is  filed,  having  the 
effect  to  reduce  the  number  of  the  peti- 
tioners below  that  required  by  the 
statute.  Richman  v.  Board,  70  Iowa  627, 
26  N.  W.  24  (1885);  77  Iowa  513,  42 
N.  W.  422,  14  Am.  St.  Rep.  308,  4  L. 
R.  A.  445  (1889);  Seibert  v.  Lovell, 
92   Iowa   507,   61    N.   W.    197. 

The  act  of  signing  a  petition  for  the 
formation  of  a  district  is  not  irrevocable, 
and  may  be  revoked  at  any  time  before 
the  jurisdiction  of  the  body  authorized 
to  act  has  been  determined  by  it.  Mack 
v.  Polecat  Drainage  Dist.,  216  111.  56, 
74  N.  E.  691    (1905). 

A  petitioner  has  the  absolute  right  to 
withdraw  up  to  the  time  of  judicial  ac- 
tion upon  the  petition.  In  re  Central 
Drainage  Dist.,  Cush  v.  Krunschke,  134 
Wis.  130,  113  N.  W.  675    (1907). 

XI.     Dismissing    Proceedings. 

The  board  of  supervisors  to  whom 
authority  to  establish  a  drainage  dis- 
trict   is   delegated   has   no   authority   to 


266 


Water  and  Mineral  Cases. 


[Iowa 


hear  and  determine  the  petition ;  and  if  they  find  such  improvement  nec- 
essary, and  no  application  shall  have  been  filed  for  damages  as  provided 
in  the  next  section,  shall  proceed  to  locate  and  establish  such  improve- 
ment. Provision  is  made  for  the  payment  of  damages  in  case  they  are 
claimed.  It  appears  that  prior  to  the  time  the  remonstrances  were  filed 
in  this  case  about  five  hundred  dollars  had  been  expended  in  making  the 
survey  and  report  touching  the  proposed  improvement.  There  is  no 
question  that  the  petition  as  presented  to  the  auditor  contained  the  requi- 
site number  of  petitioners,  nor  is  it  questioned  that  at  the  time  the  board 
acted  upon  the  matter  enough  of  the  petitioners  had  protested  and  remon- 


dismiss  proceedings  except  as  it  shall 
find  some  fatal  defect  or  irregularity  in 
the  proceedings,  or  shall  find  the  work 
is  not  one  of  public  utility,  etc.  Temple 
v.  Hamilton  County,  134  Iowa  706,  112 
N.  W.  174    (1907). 

Proceeding  must  be  dismissed  if  it  be 
found  that  the  work  will  not  benefit  the 
public  health,  or  benefit  the  public  or 
the  landowners  beyond  its  cost.  Bryant 
v.  Robbins,  74  Wis.  608,  43  N.  W.  507 
(1889). 

XII.    No  Jurisdiction  to  Fix  Damages. 

The  only  legal  method  by  which  a 
property  owner  may  be  deprived  of  his 
property  for  public  use  is  by  having  his 
damages  assessed  by  a  jury  duly  selected, 
impaneled,  and  sworn,  and  acting  under 
the  direction  of  a  court  of  competent 
jurisdiction,  and  a  statute  providing  for 
ascertainment  of  damages  by  commission- 
ers is  void.  Wabash  Railroad  Co.  v. 
Drainage  Commissioners,  194  111.  310, 
62  N.  E.  679  (1901)  ;  Juvinall  v.  James- 
burg  Drainage  Dist.,  204  111.  106,  68 
N.  E.  440  (1903)  ;  Michigan  Central  R. 
Co.  v.  Spring  Creek  Drainage  Dist.,  215 
111.   510,   74   N.   E.   696    (1905). 

The  provision  in  the  drainage  act 
authorizing  a  court  to  impanel  a  jury 
in  drainage  proceedings  without  notice 
to  or  participation  by  the  owners  of 
the  land  condemned,  and  that  where 
the  court  so  ordered  commissioners  may 
assess  damages  and  benefit  in  lieu  of  a 
jury,  are  void,  and  contravene  the  con- 
stitutional provision  requiring  compensa- 


tion for  private  property  taken  for  pub- 
lic use  to  be  ascertained  by  a  jury. 
Wabash  &  R.  Co.  v.  Coon  Run  Drainage 
&  Levee  Dist.,  194  111.  310,  62  N.  E. 
679  (1901);  Smith  v.  Claussen  Park 
Drainage  &  Levee  District,  229  111.  555, 
82  N.  E.  278,  vol.  2,  this  series. 

The  provision  of  the  Illinois  Statute 
for  assessing  damages  by  a  jury  or  by 
commissioners  is  unconstitutional  and 
void.  The  compensation  and  damages 
can  only  be  ascertained  by  a  jury.  Hull 
v.  Sangamon  River  Drainage  District, 
219  111.  454,  76  N.  E.  701,  post,  p.  459. 

As  to  trial  of  question  of  damages 
and  compensation  by  jury  or  commission- 
ers, see  note  II,  D,  to  Chicago  B.  &  Q. 
R.  Co.  v.  Board  of  Supervisors  of  Ap- 
panoose County,  post,  p.  593. 

XIII.     Power  Continuing   One. 

The  legislature  may,  after  providing 
for  an  assessment  against  all  property 
benefited  to  the  full  extent  of  benefits 
received  from  the  construction  of  a  ditch, 
authorize  additional  assessments  from 
time  to  time  to  cover  expense  of  main- 
taining and  keeping  the  ditch  in  repair. 
The  power  to  specially  assess  is  coex- 
tensive with  the  benefits  received.  It 
is  a  continuing  one  and  may  be  exercised 
to  cover  the  expense  of  maintaining  such 
improvement.  McMilanet  v.  Board  of 
Comm'rs  of  Freeborn  County,  93  Minn. 
76,    100   N.   W.    384    (1904). 

XIV.    To  Change  System. 

The  system  of  drainage  may  be  chang- 
ed by  commissioners,  and  an  additional 


1904] 


Seibekt  v.  Lovell  et  al. 


267 


strated  against  granting  the  prayer  of  the  petitioners  to  reduce  the  num- 
ber of  petitioners  below  the  legal  number  in  case  said  remonstrants  and 
protestants  should  be  treated  as  no  longer  petitioners.  From  the  fore- 
going statutes  and  facts  it  is  clear  that  the  petition  was  signed  by  the 
requisite  number  of  legal  voters  of  the  county,  and  that  such  a  petition 
was  requisite  in  order  to  confer  jurisdiction.  Now,  the  record  shows 
that  the  board  found  as  a  fact  that  the  petition  as  filed  contained  the  re- 
quired number  of  petitioners.  That  was  all  that  was  necessary  in  order  to 
confer  jurisdiction  when  the  finding  is  fully  sustained  by  the  facts,  as  it  is 
in  this  case.  We  hold,  then,  that  the  question  of  jurisdiction  is  to  be  de- 
termined from  the  petition  as  it  was  when  filed,  and  without  regard  to 
the  subsequent  acts  of  the  petitioners.    Richman  v.  Board,  70  Iowa   630, 


assessment  to  pay  the  cost  thereof  levied 
without  a  new  classification  of  the 
lands  or  notice  thereof.  Reynolds  v. 
Milk  Grove  Special  Drainage  Dist.,  134 
111.  268,  25  N.   E.  516    (1890). 

XV.    To   Use   Old    Ditch. 

The  proposed  district  may  be  over  the 
line  of  a  ditch  previously  established  and 
constructed.  Drebert  v.  Trier,  106  Ind. 
510,  7  N.  E.  223  (1886)  ;  Hardy  v.  Mc- 
Kinney,  107  Ind.  364,  8N.E.  232  (1886)  ; 
Rodgers  v.  Venus,  137  Ind.  221,  36  N. 
E.   841    (1894). 

Drains  are  constructed  by  the  public 
for  public  purposes,  and  while  the  land- 
owners are  assessed  according  to  benefits 
derived,  they  do  not  thereby  acquire  vest- 
ed rights  that  will  prevent  the  location 
and  construction  of  another  drain  upon 
the  same  line.  The  power  is  analogous 
to  the  power  of  cities  to  reconstruct 
streets,  except  in  the  latter  case  the 
statute  provides  that  the  damages  caused 
by  the  improvement  shall  first  be  paid 
to  the  landowner  who  was  assessed  for 
a  former  improvement.  Meranda  v. 
Spurlin,  100  Ind.  380   (1884). 

XVI.    To  Use  Natural  Stream. 

The  legislature  has  power  to  enact 
a  statute  providing  that  natural  streams 
may  be  straightened,  widened,  and  deep- 
ened for  the  purposes  of  drainage.  Lipes 
v.  Hand,  104  Ind.  503,  1  N.  E.  871 
(1885). 


XVII.    To    Build    Levees    or    Impound 
Debris. 

Under  an  act  providing  that  a  drain 
or  drains,  etc.,  for  agricultural  and  sani- 
tary purposes  may  be  constructed  across 
lands  of  others  by  giving  of  notice,  etc., 
with  description  of  starting  point,  route 
and  terminus,  and  if  it  be  deemed  neces- 
sary that  a  levee  or  other  work  be  con- 
structed, the  same  to  be  stated,  and  the 
appointment    of    the    commissioners    for 
the  construction  of  such  work  pursuant 
to  the  provisions  of  the  law.     The  words 
"levees  or   other  works"   must  be  taken 
only    in    connection    with    drainage    for 
agricultural  and  sanitary  purposes,  and 
as  auxiliary  to  the  drainage  of  the  lands. 
This  is  the  only  construction  which  will 
bear  the  test  of  the  Constitution,  other- 
wise, one  owner  whose  lands  are  subject 
to    overflow    at    certain    seasons    of    the 
year  from  the  river,  could  set  in  motion 
in  proceedings  »f or  the  erection  of  a  levee 
sufficient  to  protect  his  lands,  no  matter 
how  expensive,  and  have  the  cost  levied 
upon  the  lands  of  others  in  the  vicinity 
which    the    commissioners    appointed    by 
the   court  might   deem   benefited  by  the 
improvement.      The   work    of    construct- 
ing   a    great    levee    along   the   banks    of 
a  river  subject  to  overflow  is  not  embrac- 
ed within  the  provisions  of  the  statute 
and   is,   therefore,   without   authority   ot 
enabling  law.    Updike  v.  Wright,  81  111. 
49   (1876);  O'Brien  v.  Wheelock,  95  Fed. 


268 


Watee  and  Mineral  Cases. 


[Iowa 


26  N.  W.  24,  and  jy  Iowa  513,  42  N.  W.  422.  So  far  as  affecting  the 
jurisdiction  which  had  already  attached  was  concerned,  the  protests  and 
remonstrances  were  of  no  effect.  They  were  proper  to  be  taken  into 
consideration  by  the  board  in  passing  upon  the  merits  of  the  petition,  but 
they  were  not  available  for  any  other  purpose.  It  must  be  remembered 
that  jurisdiction  did  not  attach  as  of  the  date  when  the  board  acted,  but 
as  of  the  date  when  the  legal  petition  was  filed.  The  power  to  act  hav- 
ing been  conferred  upon  the  board  by  virtue  of  a  legal  petition,  it  could 
not  be  impaired  or  taken  away  by  the  protests,  remonstrances,  or  at- 
tempted withdrawals  of  some  of  the  petitioners.  The  question  requires 
no  further  consideration. 


883,  37  C.  C.  A.  309  (1899),  affirmed 
O'Brien  v.  Wheeler,  184  U.  S.  450,  44 
L.   Ed.   636,  22   Sup.   Ct.   345    (1902). 

The  control  of  debris  from  mining  or 
other  operations  cannot  be  said  to  be 
an  incident  of  drainage  so  as  to  come 
within  the  provision  of  an  act  entitled 
"An  act  to  promote  drainage."  People  v. 
Parks,   58   Cal.   624    (1881). 

XVIII.    Enlargement  of  Old   Ditch. 

The  fact  that  a  ditch  exists  which  by 
being  enlarged  could  accomplish  the 
drainage  contemplated  by  a  new  ditch 
does  not  in  itself  prevent  the  establish- 
ment of  the  new  ditch.  Miller  v.  Weber, 
1  Ohio  Cir.  Ct.  Rep.  130  (1885). 

The  fact  that  trustees  have  located 
one  ditch  does  not  exhaust  their  power  of 
drainage  nor  confine  it  to  deepening  and 
widening  the  old  ditch.  Miller  v.  Weber, 
1   Ohio  Cir.   Ct.  Rep.   130    (1885). 

XIX.     Division    of    Tract    for    Assess- 
ment. 

An  act  which  provides  that  commis- 
sioners shall  assess  to  each  tract  of 
land  its  proportionate  share  of  the  en- 
tire cost  of  the  work,  does  not  require 
that  a  tract  of  land  shall  be  divided  into 
the  smallest  legal  subdivision  in  mak- 
ing the  assessment.  The  more  reason- 
able view  is  that  two  or  more  tracts 
disconnected  should  not  be  valued  and 
assessed  together.  Spellman  v.  Cur- 
tenrus,  12  111.  409  (1851);  Moore  v. 
People  ex  rel.  Lewis,  106  111.  376  (1883). 


XX.  Assessment    Before    Work    Com- 

pleted. 

An  assessment  may  be  made  before 
the  work  is  completed;  as  soon  as  the 
amount  for  which  the  district  will  be 
liable  is  approximately  ascertained.  Ross 
v.  Supervisors  of  Wright  County,  128 
Iowa  427,  104  N.  W.  506,  p.  358,  this 
volume. 

XXI.  Power   to   Assess    Strictly    Con- 

strued. 

The  proceeding  for  assessment  by  com- 
missioners being  one  in  derogation  of 
the  common  law,  the  act  conferring  the 
authority  should  be  liberally  construed 
in  favor  of  the  landowners.  People  ex 
rel.  More  v.  County  Court  of  Jefferson 
County,   51   Barb.    (N.  Y.)    136    (1867). 

As  to  the  power  to  include  various 
classes  of  land,  such  as  public  lands, 
lands  uncovered  by  recession  of  lakes, 
lands  in  more  than  one  county,  lands 
requiring  distinct  systems  of  drainage, 
public  highways,  municipal  corporations, 
railroad  rights  of  way,  lands  drained 
by  nature,  lands  partially  drained,  high 
and  dry  lands,  dominant  and  servient 
lands,  lands  the  majority  of  which  are 
drained,  see  note  IV,  to  Hull  v.  San- 
gamon River  Drainage  District,  post, 
p.  593. 

As  to  the  conclusiveness  of  the  decision 
of  commissioners,  etc.,  see  note  to  Chap- 
man &  Dewey  Land  Co.  v.  Wilson,  vol. 
2,  this  series. 


1904] 


Seibert  v.  Lovell  et  al. 


269 


It  is  insisted  that  we  should  so  construe  the  law  as  to  require  that 
petitioners  should  reside  near,  or  be  interested  in,  the  proposed  improve- 
ment. To  do  so  would  be  to  make  law,  not  to  construe  it.  The  statute 
contains  no  such  restriction.  All  that  is  required  is  that  one  hundred 
legal  voters  of  the  county  shall  petition  in  order  to  set  the  machinery 
of  the  law  in  motion.  We  cannot  override  the  plain  provisions  of  the 
statute.  If  the  law  is  defective  in  this  respect,  and  the  rights  of  citizens 
not  properly  protected,  resort  must  be  had  to  the  legislature  for  relief. 
The  decision  of  the  district  court  was  right,  and  its  judgment  is  affirmed. 


As  to  waiver  of  irregularities  in  action 
of  commissioners,  etc.,  see  note  II  to 
Smith  v.  Claussen  Park  Drainage  & 
Levee  District,  vol.  2,  this  series. 

As  to  necessity  of  giving  notice  of 
proceedings,  of  what  proceedings  notice 
is  necessary,  and  of  effect  of  failure  to 
give  notice,  see  note  to  Ross  v.  Board 
of  Supervisors  of  Weight  County,  post, 
p.  358. 

As  to  power  to  include  land  in  more 


than  one  district,  see  note  III,  A,  to  Hull 
v.  Sangamon  River  Drainage  District, 
post,  p.  600. 

As  to  power  to  change  boundaries  of 
district,  see  note  II,  H,  to  Hull  v.  San- 
gamon River  Drainage  District,  post,  p. 
599. 

As  to  power  to  form  sub-districts,  see 
note  III,  B,  to  Hull  v.  Sangamon  River 
Drainage  District,  post,  p.  600. 


270 


Water  and  Mineral  Cases. 


[California 


VAN  NESS  v.  R00NEY  et  al. 


[Supreme  Court  of  California,  June  6,  1911;  rehearing  denied  July  6,  1911.] 
—  Cal.  — ,  116  Pac.  392. 

1.  Mining    Location — Title   Acquired. 

A  mining  location  secures  a  good  title  in  the  locator,  without  a  patent,  so  long 
as  there  has  not  been  a  subsequent  location  based  on  his  failure  to  do  assessment 
work. 

2.  Public  Domain — Patent — Mineral  Lands. 

A  patent  for  land  granted  to  a  railroad  company  expressly  excluding  and  except- 
ing all  mineral  lands  except  coal  and  iron  lands,  is  held  to  grant  only  lands  non- 
mineral,  the  exception  being  construed  as  part  of  the  description. 

3.  Same — Railroad    Grants. 

Mineral  lands  situated  within  railroad  grants  are  subject  to  location  as  mining 
claims  up  to  the  time  of  the  issuance  of  the  patent  to  the  railroad  company. 

4.  Same — Unknown  Mineral  Deposits. 

A  patent  to  land  as  agricultural  land  transfers  to  the  patentee  all  mineral  de- 
posits within  its  boundaries  not  known  to  exist  at  the  time  of  the  patent. 

5.  Same — Known   Mineral   Deposits. 

Mineral  deposits  whose  existence  is  known  do  not  pass  under  a  patent  issued  for 
land  subject  to  disposal  or  sale. 

6.  Same — Mining  Claim — Quieting  Title. 

One  in  possession  of  a  mining  claim  under  a  valid  location  prior  to  the  issuance 
of  a  patent  to  a  railroad  company  is  the  equitable  owner,  entitled  to  have  his  title 
quieted  as  against  the  patentee  asserting  ownership  therein. 

In  Bank.  Appeal  from  the  Superior  Court,  Los  Angeles  County,  Frank 
R.  Willis,  Judge. 

Action  to  quiet  title  by  H.  J.  Van  Ness  against  John  Rooney  and 
others,    Judgment  for  plaintiff.    Defendants  appeal.    Affirmed. 

For  appellants— D.  J.  Hall  and  Taylor  &  Tebbe. 

For  respondent — Braynard  &  Kimball. 

LORIGAN,  J.  This  action  was  brought  by  plaintiff  against  de- 
fendants to  quiet  his  title  to  a  quartz  mining  claim,  known  as  the  "Five 
Pines  Mine/'  located  in  Trinity  County,  and  for  an  injunction  restrain- 


NOTE. 

As  to  nature  of  property  in  a  mining 
claim,  see  note  to  Arnold  v.  Goldfield 
Third    Chance   Mining   Co.,   vol.   3,    this 


series.  As  to  right  of  possession  of 
mining  claim,  see  note  to  Dwinnell  v. 
Dyer,  vol.  3,  this  series. 


1911]  Van  Ness  v.  Eooney  et  al.  271 

ing  defendants  from  trespassing  on  or  extracting  ore  therefrom.  Plain- 
tiff proved  a  valid  location  of  the  mine  by  one  Edwin  Baker,  on  August 
26,  1895,  and  a  conveyance  by  said  locator  to  plaintiff;  that  the  claim 
consisted  of  a  piece  of  land  1,500  feet  long  by  600  feet  wide  located 
partly  in  section  20  and  partly  in  section  29,  township  35  north,  range 
1  west,  M.  D.  M.,  about  half  the  surface  ground  of  said  claim  lying  in 
each  of  said  sections ;  that  the  annual  work  and  labor  required  by  law 
to  be  done  had  been  performed  on  said  claim  each  year  after  its  loca- 
tion, and  that  the  claim  embraced  valuable  gold-bearing  ore,  and  con- 
tained no  deposits  of  coal  or  iron. 

The  defendants  asserted  title  to  that  portion  of  the  mining  claim  lo- 
cated in  section  29  as  successors  in  interest,  under  a  patent  issued  by 
the  United  States,  to  the  Central  Pacific  Railroad  Company,  dated  Feb- 
ruary 14,  1896.  This  patent  purported  to  convey  to  said  railroad  com- 
pany some  200,000  acres  of  land  in  various  sections,  townships,  and 
ranges  in  California,  including  all  of  said  section  29.  The  descriptive  calls 
in  the  patent  are  followed  by  the  granting  clause,  whereby  the  United 
State  grants  to  the  Central  Pacific  Railroad  Company  "all  the  tracts 
of  land  described  in  the  foregoing,  yet  excluding  and  excepting  all  mineral 
lands  should  any  such  be  found  in  the  tracts  aforesaid,  but  this  exclusion 
and  exception  according  to  the  terms  of  the  statute  shall  not  be  construed 
to  include  coal  and  iron  lands." 

Judgment  was  entered  in  favor  of  plaintiff,  declaring  him  to  be  the 
owner  and  entitled  to  the  possession  of  the  mining  ground  in  question 
against  everyone,  except  the  government  of  the  United  States;  that 
defendants  had  no  right  or  title  to  any  part  thereof,  and  enjoined  them 
from  trespassing  upon  the  property.  Defendants  moved  for  a  new  trial, 
which  being  denied,  this  appeal  is  taken  solely  from  the  denial  of  said 
order. 

The  judge  of  the  superior  court  of  Trinity  county,  Hon.  J.  W.  Bartlett, 
before  whom  this  cause  was  tried,  in  ordering  judgment  for  plaintiff 
filed  a  written  opinion  in  which  he  set  forth  so  clearly  the  questions  in- 
volved in  the  suit,  with  accurate  declarations  of  law  bearing  on  them, 
that  we  quote  from  it  extensively. 

After  referring  to  the  facts,  as  we  have  recited  them  above,  including 
the  terms  of  the  patent  to  the  railroad  company  and  the  exceptions  con- 
tained therein,  the  opinion  of  said  superior  judge  proceeds: 

"What,  if  any,  is  the  effect  of  the  exception  and  reservation  above  set 
forth  in  said  patent  as  determinative  of  the  issues  involved  in  this  case. 
Plaintiff's  claim  is  that  by  virtue  of  this  exception  and  reservation  no 
title  passed  by  the  patent  to  that  portion  of  the  'Five  Pines  Mine'  which 
lies  within  that  portion  of  said  section  29  of  township  35  north,  range  7 


272  Water  and  Mineral  Cases.  [California 

west,  M.  D.  M.,  to  which  defendants  allege  title.  Defendants  claim  that 
plaintiff  is  debarred  from  making  this  claim  by  reason  of  the  provisions 
of  the  Act  of  Congress  of  March  2,  1896  [chapter  39,  29  Stat.  42  (U.  S. 
Comp.  St.  T901,  p.  1603)],  which  prohibits  the  bringing  of  actions  by  the 
United  States  to  annul  patents  theretofore  erroneously  issued  under 
railroad  or  wagon  road  grants,  after  five  years  from  the  time  of  the 
passage  of  said  act  of  congress;  that  this  action  is  an  unauthorized 
attack  upon  a  United  States  patent,  and  that  if  plaintiff  was  ever  in  a 
position  to  question  the  validity  of  the  passing  under  said  patent  of  the 
title  to  said  section  29  he  has  lost  his  rights  by  not  bringing  his  action 
within  five  years  from  the  time  the  patent  was  issued.  Defendants  also 
claim  that  the  excepting  clause  is  inserted  in  the  patent  without  any  au- 
thority of  law,  and  is  void  and  of  no  effect. 

"These  questions  are  of  momentous  importance,  for  on  their  proper 
solution  depends  the  validity  of  titles  of  locators  on  much  of  the  mineral 
lands  in  the  mining  districts  of  Trinity  County  and  in  other  of  the  min- 
ing counties  of  the  State  of  California.  While  a  great  number  of  author- 
ities on  questions  relating  to  the  scope  and  effect  of  patents  issued  by 
authorized  officers  of  the  government  of  the  United  States  were  cited  in 
the  argument  of  counsel  at  the  trial  of  this  action,  none  have  been  pre- 
sented, and  after  much  research  this  court  has  not  as  yet  found  any 
decision  of  United  States  Supreme  Court,  federal  court,  or  state 
supreme  court,  clearly  or  directly  determining  the  questions  urged  by 
defendants,  and  in  this  action  it  is  compelled  to  solve  those  matters  largely 
through  a  construction  and  application  of  the  United  States  statutes  gov- 
erning the  transfers  of  public  lands  and  those  governing  the  locating  and 
hold'ng  of  mining  claims  situate  on  the  public  domain. 

"From  its  inception  it  has  been  the  policy  of  the  United  States  gov- 
ernment to  retain  the  mineral  lands  of  the  United  States  for  mining  pur- 
poses, and  not  to  allow  title  to  them  to  pass  to  pre-emptors,  homestead- 
ers, timber  applicants,  grantees  under  wagon  road  or  railroad  grants, 
or  in  any  case,  save  where  patents  were  secured  in  pursuance  of  the  pro- 
visions pemitting  the  purchase  directly  of  mineral  lands.  This  is  evi- 
denced by  all  the  statutes  of  the  United  States  relating  in  any  way  to  the 
disposal  of  public  lands,  by  the  requirements  in  final  proofs  when  made 
by  claimants  for  any  variety  of  land,  and  by  various  resolutions  of  the 
Congress  of  the  United  States,  declaring  that  mineral  lands  were  not 
intended  to  be  granted  under  the  guise  of  grants  in  aid  of  the  construc- 
tion of  wagon  roads  and  railways.  In  the  recitals  of  the  patent  involved 
in  the  case  at  bar,  it  is  specified  that  the  act  under  which  the  patent  is 
issued  does  not  pass  mineral  lands,  and  the  exception  and  reservation 
in  question  indicate  that  the  officers  authorized  to  make  disposition  of 


1911]  Van  Ness  v.  Booney  et  al.  273 

the  lands  by  patent  were  desirous  of  preserving  for  the  people  of  the 
United  States  any  mineral  lands  that  might  be  found  in  the  large  portion 
of  the  public  domain  which  was  being  given  for  all  time  into  the  hands 
of  a  private  corporation. 

"By  the  mining  statutes  of  the  United  States  passed  in  1866  [Act  July 
26,  1866,  c.  262,  14  Stat.  251],  the  right  of  entering  upon  and  locating 
and  appropriating  lands  valuable  for  their  mineral  deposits  was  conferred 
upon  every  citizen  of  the  United  States,  and  those  who  might  declare 
their  intention  to  become  such  citizens.  By  the  discovery  of  mineral 
and  marking  of  boundaries  and  compliance  with  such  rules  as  local  min- 
ing districts  or  state  legislatures  might  enact,  not  to  conflict  with  the 
United  States  laws,  the  locator  of  a  quartz  mining  claim  was  given 
the  exclusive  right  to  the  possession  of  the  lands  and  the  mineral  therein 
contained  within  the  boundaries  of  his  claim.  Only  one  condition  was 
imposed  upon  him,  and  that  was  in  every  calendar  year  he  must  per- 
form in  work  and  labor  and  improvements  upon  his  mine  at  least  $100  in 
value.  If  he  did  not  do  this,  he  was  liable  to  lose  his  mine,  in  the  event 
some  other  qualified  locator  made  a  location  of  the  claim  before  the 
original  locator  had  resumed  work.  His  claim  did  not  become  forfeited 
to  the  government  because  of  failure  to  do  the  work,  as  he  could  resume 
operations  and  rely  upon  his  original  title  by  location  at  any  time  before 
another  had  located.  Under  these  mere  locations,  much  of  the  valuable 
mining  lands  of  the  United  States  has  been  held  and  worked,  and  is 
still  held  and  worked,  and  the  title  kept  alive  by  the  required  work  in 
each  year  has  always  been  regarded  as  a  perfectly  safe  and  secure  title. 
No  provision  has  ever  been  enacted  compelling  any  miner  to  patent  his 
claim,  and  time  and  again  these  locations  have  been  held  to  have  all  the 
effect  and  incidents  of  a  grant  from  the  government.  As  said  by  the 
Supreme  Court  of  the  United  States  in  Forbes  v.  Gracey,  94  U.  S.  767 
[24  L.  Ed.  313]  : 

"  'Mining  claims  on  public  land  are  property  in  the  fullest  sense 
of  the  word.'  In  the  case  of  Gwillim  v.  Donnellan,  115  U.  S.  49  [5  Sup. 
Ct.  1 1 12  (29  L.  Ed.  348)],  the  same  court  holds:  'A  valid  location  of 
mineral  lands,  made  and  kept  up  in  accordance  with  statute,  has  the  ef- 
fect of  a  grant  by  the  United  States  of  the  right  of  present  and  exclusive 
possession  of  lands  located.' 

"Mineral  lands  situated  within  the  limits  of  railroad  grants  are 
subject  to  location  up  to  the  time  of  the  issuance  of  the  patent,  clearly 
determined  in  the  great  case  of  Barden  v.  Northern  Pac.  R.  Co.,  154 
U.  S.  288  [14  Sup.  Ct.  1030,  38  L.  Ed.  992]  by  the  Supreme  Court  of 
the  United  States,  and  this  court  is  the  final  arbiter  of  all  the  questions 
arising  in  cases  like  the  one  before  this  court,  and  this  decision  alone 
W.  &  M.— 18 


274  Water  and  Mineral  Cases.  [California 

precludes  this  court  from  finding  that  plaintiff's  grantor  was  not  entitled 
to  this  land  when  the  patent  under  discussion  was  executed  to  the  Cen- 
tral Pacific  Railroad  Company. 

"The  argument  of  defendants  that  plaintiff  is  debarred  from  the  relief 
he  seeks  because  of  the  provisions  of  the  act  of  Congress  of  March 
2,  1896,  is  wholly  without  merit.  Plaintiff  is  not  seeking  in  this  action 
to  annul  or  avoid  a  patent  issued  by  the  government  of  the  United 
States.  The  effect  of  granting  the  relief  he  asks  does  not  in  any  way 
invalidate  the  patent  in  question.  It  is  an  interpretation  of  the  instru- 
ment that  will  be  brought  about  by  the  judgment  in  this  action,  which 
will  determine  what,  if  any,  lands  in  section  29  of  township  35  north  of 
range  7  west,  M.  D.  M.,  are  included  in  the  reserving  clause  of  the 
patent.  It  is  safe  to  presume  that  when  the  President  of  the  United 
States  was  about  to  sign  the  patent,  if  it  had  been  called  to  his  attention 
that  there  was  on  said  section  29  a  quartz  claim  which  has  been  duly 
located,  which  was  being  worked,  which  had  defined  bounds,  or  could 
be  identified  and  defined,  that  he  would  have  refused  to  sign  the  patent 
until  these  lands  had  been  expressly  excepted.  But  to  except  such  lands 
it  was  not  necessary  for  him  to  know  that  an  actual  location  had  been 
made.  That  could  be  an  actual  fact,  as  in  this  instance  it  was,  without 
the  knowledge  reaching  the  land  department  or  the  president  prior  to 
the  issuance  of  the  patent.  By  virtue  of  such  location,  and  because  of 
the  mining  statutes,  and  by  reason  of  the  interpretation  made  by  the 
Supreme  Court  of  the  United  States  as  to  the  effect  of  such  location, 
the  lands  embraced  in  the  location  had  passed  into  the  possession  and 
control  of  the  locator;  his  location  had  as  effectually  given  him  a  right 
to  the  possession  of  the  located  claim,  as  if  it  had  been  granted  to  him 
by  the  Government  of  the  United  States. 

"The  moment  the  locator  discovered  a  valuable  mineral  deposit 
on  the  lands  and  perfected  his  location  in  accordance  with  law,  the 
power  of  the  United  States  government  to  deprive  him  of  the  exclusive 
right  to  the  possession  and  enjoyment  of  the  located  claim  was  gone;  the 
lands  had  become  known  mineral  lands,  and  they  were  exempted  from 
lands  that  could  be  granted  to  any  railroad  company.  On  August  25,  1895, 
a  lode  had  been  found  to  exist  on  the  section  in  controversy  in  this  action, 
mineral  lands  had  been  found  in  one  of  the  tracts  mentioned  in  the  pat- 
ent, and  by  force  of  the  reserving  clause  therein  these  lands  never  passed 
from  the  government  by  reason  of  the  patent. 

"The  case  of  Noyes  v.  Mantle,  127  U.  S.  348,  8  Sup.  Ct.  1132,  32  L. 
Ed.  168,  is  most  convincing  that  such  is  the  construction  that  should  be 
placed  on  the  reservation  in  the  patent.  In  this  case  the  Supreme  Court 
of  the  United  States  says :    'Where  a  location  of  a  vein  or  lode  has  been 


19111  Van  Ness  v.  Eooney  et  al.  275 

made  under  the  law  and  its  boundaries  have  been  specifically  marked 
on  the  surface  so  as  to  be  readily  traced,  and  notice  of  the  location  is 
recorded  in  the  usual  books  of  record  within  the  district,  we  think  it 
may  safely  be  said  that  the  vein  or  lode  is  known  to  exist,  although  per- 
sonal knowledge  of  the  fact  may  not  be  possessed  by  the  applicant  for 
a  patent  of  a  placer  claim.  The  information  which  the  law  requires  the 
locator  to  give  to  the  public  must  be  deemed  sufficient  to  acquaint  the 
applicant  with  the  existence  of  the  vein  or  lode.  A  copy  of  the  patent 
is  not  in  the  record,  so  we  cannot  speak  positively  as  to  its  contents; 
but  it  will  be  presumed  to  contain  reservations  of  all  veins  or  lodes  known 
to  exist  pursuant  to  the  statute.  At  any  rate,  as  already  stated,  it  could 
not  convey  property  which  had  already  passed  to  others.  A  patent  of 
the  United  States  cannot,  any  more  than  a  deed  of  an  individual,  transfer 
what  the  grantor  does  not  possess.' 

"Plaintiff's  predecessor  in  interest  having  duly  located  the  Five 
Pines  mine,  before  the  issuance  of  the  patent  here  in  question,  that  por- 
tion of  said  mine  which  lies  within  the  west  half  of  the  northwest  quar- 
ter of  section  29  of  township  35  north  of  range  7  west,  M.  D.  M.,  must 
be  held  to  be  not  included  in  the  lands  conveyed  by  the  patent  to  the 
Central  Pacific  Railroad  Company  because  of  the  reservation  contained 
in  the  granting  clause  of  the  patent,  and  judgment  in  this  action  should 
be  in  favor  of  the  plaintiff,  as  prayed  for  in  his  complaint." 

The  affirmance  of  this  appeal  might  be  rested  upon  the  legal  principles 
announced  in  this  opinion  of  the  trial  judge  and  further  consideration 
of  the  matter  made  unnecessary,  if  it  were  not  that  some  points  and  au- 
thorities cited  by  appellant  here  are  to  be  noticed,  as  well  as  some  decis- 
ions, other  than  those  referred  to  by  the  trial  judge,  to  be  cited. 

The  principal  claim  of  the  appellants  is  that  the  patent  of  the  gov- 
ernment to  the  railroad  company  was  conclusive  of  the  fact  that  the 
land  was  such  as  was  patentable  under  the  grant;  that,  as  land  which 
was  mineral  in  character  (save  coal  and  iron  lands)  could  not  be  granted, 
the  issuance  of  the  patent,  accompanied  by  the  presumption  that  the  land 
department  had  done  its  duty,  conclusively  established  that  the  lands  as 
described  in  the  patent  were  nonmineral  in  character,  and  the  exception 
and  reservation  of  mineral  land  contained  therein  amounted  to  nothing. 

As  a  general  proposition,  and  as  applied  to  the  disposition  of  its  pub- 
lic lands  by  the  Government  of  the  United  States,  the  rule  contended  for 
by  appellants  is  undoubtedly  true.  The  land  department  is  vested  with 
special  power  to  determine  the  claims  of  different  persons  to  public  lands 
it  is  authorized  to  dispose  of.  The  duty  is  cast  upon  it  to  determine  the 
character  of  the  public  lands,  as  to  whether  it  is  mineral  land  reserved 
under  the  provisions  of  the  general  law  from  sale,  or  agricultural  or 


276  Water  and  Mineral  Cases.  [California 

other  land  of  which  it  may  make  disposition.  The  determination  of  this 
question  of  the  character  of  the  land  being  given  to  the  land  department, 
the  general  rule  is  that  the  issuance  of  a  patent  is  a  conclusive  determina- 
tion that  the  land  is  agricultural,  or  such  other  character  as  might  be 
disposed  of  under  the  general  law  providing  for  the  disposition  of  public 
lands,  and  not  mineral  land  reserved  from  sale,  and  the  effect  of  the 
issuance  of  a  patent  to  the  land  as  agricultural  land  is  to  transfer  to 
the  patentee  all  mineral  deposits  which  may  be  subsequently  discovered 
within  its  boundaries,  but  which  were  not  known  to  exist  at  the  time  the 
patent  was  issued.  While  this  is  the  general  rule  as  to  vesting  in  the 
patentee  of  agricultural  land  the  title  to  all  mineral  deposits  the  exist- 
ence of  which  were  unknown  when  the  patent  was  issued,  the  rule  is 
equally  established  that  mineral  deposits  known  to  exist  in  the  land  at 
the  time  the  patent  was  issued  do  not  pass  under  it.  In  this  state  this 
was  held  to  be  the  rule  in  cases  involving  patents  issued  to  railroad  com- 
panies under  the  same  general  act  of  congress  making  such  grants,  and 
which  explicitly  excluded  and  excepted  from  the  operation  thereof 
grants  of  mineral  lands,  and  with  similar  express  exclusion  and  excep- 
tion in  a  patent  as  to  mineral  land,  should  any  be  found  in  the  premises 
granted. 

The  first  case  (McLaughlin  v.  Powell,  50  Cal.  64)  was  ejectment; 
plaintiff  deraigning  title  under  a  patent  of  the  United  States  to  the  Wes- 
tern Pacific  Railroad  Company  of  California,  issued  in  1870.  This  pat- 
ent, as  does  the  one  here,  excluded  and  excepted  mineral  land,  should 
any  be  found  to  exist  on  the  tracts  described  in  the  patent.  Defendant 
offered  to  prove  that  portion  of  the  land  described  in  the  patent  and  of 
which  plaintiff  sought  to  recover  possession  was  mineral  land,  and  that 
he  had  held  it  as  a  mining  claim  since  1866.  The  trial  court  refused  to 
permit  him  to  do  so,  and  the  court,  reversing  the  cause  for  this  refusal, 
said :  "The  exception  contained  in  the  patent  introduced  by  the  plaintiff 
is  part  of  the  description,  and  is  equivalent  to  an  exception  of  all  the 
subdivisions  of  the  land  mentioned  which  were  'mineral'  lands.  In  other 
words,  the  patent  grants  all  of  the  tracts  named  in  it  which  are  not  min- 
eral lands.  If  all  are  mineral  lands,  it  may  be  that  the  exception  is  void ; 
but  the  fact  cannot  be  assumed,  as  by  its  terms  the  exception  is  limited 
to  such  as  are  mineral  land,  and  does  not  necessarily  extend  to  all  the 
tracts  granted.  We  think  the  defendant  should  have  been  allowed  to 
prove  that  the  demanded  premises  were  mineral  lands." 

In  Chicago  Quartz  M.  Co.  v.  Oliver,  75  Cal.  194,  16  Pac.  780,  7  Am. 
St.  Rep.  143,  the  action  was  brought  by  plaintiff  to  quiet  its  title  to  a 
quartz  mining  claim  to  which  the  defendant  asserted  title  as  successor 
in  interest  under  a  patent  issued  to  the  Central  Pacific  Railroad  Com- 


1911] 


Van  Ness  v.  Rooney  et  al.  277 


pany  in  1870,  and  which  patent  contained  a  provision,  as  in  the  patent 
involved   here,   excepting  and  excluding  all  mineral   land,   should   any 
be  found  in  the  patented  premises.     The  trial  court  found  that  the  Chi- 
cago Quartz  Mining  Company's  quartz  mine  was  valuable  gold-bearing 
mineral  land,  and  had  been  notoriously  known  and  frequently  worked  as 
such  ever  since  1861,  and  thereupon  made  a  decree  in  favor  of  plaintiff, 
quieting  its  title.    On  appeal  here,  the  same  point  was  made  as  is  urged 
now,  that  the  patent  was  conclusive,  and  not  subject  to  collateral  attack. 
In  affirming  the  judgment,  this  court  discussed  the  acts  of  congress  under 
which  these  grants  to  the  railroad  company  were  made,  and  the  duty  of 
the  land   department  relative   to   issuing  patents  thereunder.     In   con- 
nection therewith,  it  said:     "In  the  original  act  (granting  lands  to  rail- 
roads in  aid  of  the  construction  of  their  roads)   all  mineral  lands  are 
expressly  excepted  from  its  operation,  and  in  the  amendatory  act  it  is 
enacted  that  the  grant  shall  not  include  mineral  lands,  or  any  lands    re- 
turned and  denominated  as  mineral  lands.     'Whatever  is  included  in  the 
exception  is  excluded  from  the  grant;  and  it  therefore  often  becomes  im- 
portant to  ascertain  what  is  excepted,  in  order  to  determine  what  is 
granted.'    Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.,  92  U.  S.  733  [23  L-  Ed. 
634]  -    It  is  not  claimed  that  the  officers  on  whom  was  devolved  the  duty 
of  issuing  the  patents  to  the  lands  granted  could  add  anything  to  the 
grant     But  it  is  claimed  that  the  patent  is  conclusive  evidence  that  the 
grant  included  all  the  land  covered  by  the  patent.     The  Supreme  Court 
of  the  United  States  has  said:    'A  patent  may  be  collaterally  impeached 
in  any  action,  and  its  operation  as  a  conveyance  defeated,  by  showing 
that  it  had  no  jurisdiction  to  dispose  of  the  lands ;  that  is,  the  law  did  not 
provide  for  selling  them,  or  that  they  had  been  reserved  from  sale  or 
dedicated  to  special  purposes,  or  had  previously  been  transferred  to  oth- 
ers.'    Smelting  Co.  v.  Kemp,  104  U.  S.  636  [26  L.  Ed.  875].     This  is 
quoted  approvinglv  in  the  opinion  of  the  court,  delivered  by  Field,  J.,  in 
Wright  v.  Roseberry,  121  U.  S.  488  [7  Sup.  Ct.  985,  30  L.  Ed.  1039]. 
And'following  the  rule  announced  in  McLaughlin  v.  Powell,  supra,  it  was 
held  that  such  a  patent  only  grants  lands  which  are  nonmineral  in  char- 
acter ;  that  the  exception  of  mineral  lands  in  the  patent  is  part  of  the 
description  and  equivalent  to  an  exception  therefrom  of  all  lands  that 
were  mineral,  and  that  the  Chicago  Quartz  Mining  Company  had  a  right 
to  show  that  the  land  that  it  claimed  was  known  mineral  land  at  the  time 
of  and  long  prior  to  the  issuance  of  the  patent  to  the  railroad  company, 
and  was  land  within  the  exception  in  the  patent. 

Aside  from  the  cases  in  our  court  dealing  particularly  with  patents 
under  grants  of  congress  to  railroad  companies,  the  rule  appears  to  be 
general  that  mineral  deposits  do  not  pass  under  a  patent  issued  for  land 


278  Water  and  Mtneral  Cases.  [California 

subject  to  disposal  or  sale  where,  at  the  time  of  the  issuance  of  the  pat- 
ent, such  mineral  deposits  are  known  to  exist.  Reynolds  v.  Iron  Silver 
Min.  Co.,  115  U.  S.  687,  6  Sup.  Ct.  601,  29  L.  Ed.  774;  Davis'  Adm'r  v. 
Weibbold,  139  U.  S.  507,  11  Sup.  Ct.  628,  35  L.  Ed.  238;  Kansas  Min. 
&  Mill.  Co.  v.  Clay,  3  Ariz.  326,  29  Pac.  9;  Loney  v.  Scott  (Or.),  112 
Pac.  173. 

In  Reynolds  v.  Iron  Silver  Min.  Co.,  supra,  a  patent  was  granted  for 
a  placer  mine  within  the  boundaries  of  which,  when  the  patent  was  issued, 
a  quartz  mine  was  known  to  exist.  Speaking  of  the  effect  of  the  grant 
to  the  placer  claim  patentee  under  this  circumstance,  the  court  said : 
"He  (the  placer  claim  patentee)  takes  his  surface  land  and  his  placer 
mine,  and  such  lodes  or  veins  of  mineral  matter  within  it  as  were  un- 
known, but  as  to  such  as  were  known  to  exist  he  gets  by  that  patent 
no  right  whatever.  The  title  remaining  in  his  grantor,  the  United  States, 
to  this  vein,  the  existence  of  which  was  known,  he  has  no  interest  in  it 
as  authorizes  him  to  disturb  any  one  else  in  the  peaceable  possession  and 
mining  of  that  vein.  When  it  is  once  shown  that  the  vein  was  known  to 
exist  at  the  time  he  acquired  title  to  the  placer,  it  is  shown  that  he 
acquired  no  title  or  interest  in  that  vein  by  his  patent.  Whether  the  de- 
fendant has  title  or  is  a  mere  trespasser,  it  is  certain  that  he  is  in  posses- 
sion, and  that  it  is  a  sufficient  defense  against  one  who  has  no  title  at 
all,  nor  ever  had  one."  It  was  therefore  held  that  no  title  to  the  quartz 
ledge  passed  to  the  placer  claim  patentee,  but  the  title  thereto  remained 
in  the  United  States  Government.  In  the  case  of  Davis'  Adm'r  v.  Weib- 
bold, supra,  it  was  likewise  held  that  as  to  known  mineral  land  no  title 
passed  to  the  patentee.  And  to  the  same  effect  are  the  other  authorities 
referred  to  by  us. 

Certain  California  cases  are  cited  by  appellant  under  which  they  claim 
that  the  patent  to  the  railroad  company  is  conclusive  against  the  attack 
of  respondent.  These  are  particularly :  Gale  v.  Best,  78  Cal.  235,  2  Pac. 
550,  12  Am.  St.  Rep.  44;  Saunders  v.  La  Purisima,  etc.,  Co.,  125  Cal. 
159,  57  Pac.  656;  Paterson  v.  Ogden,  141  Cal.  43,  74  Pac.  443,  99  Am. 
St.  Rep.  31;  and  Jameson  v.  James,  155  Cal.  275,  100  Pac.  700.  But 
an  examination  of  these  cases  shows  that  the  attack  on  the  patent  was 
made  by  junior  claimants.  As  to  such  claimants,  it  is  clear  as  pointed 
out  in  those  authorities,  that  the  patent  to  the  land  as  agricultural  land 
is  conclusive. 

But  the  plaintiff  here  is  not  a  junior  claimant.  He  had  made  a  valid 
mining  location  and  initiated  his  title  to  his  mining  claim  in  the  quarter 
section  in  question  nearly  six  months  before  the  issuance  of  the  patent 
to  the  railroad  company,  and,  as  the  law  is  that  mineral  deposits  whose 
existence  are  known  when  the  patent  is  issued  do  not  pass  under  it,  the 


1911]  Van  Ness  v.  Rooney  et  al.  279 

patent  was  ineffectual  to  transfer  any  title  to  the  appellants  as  to  the 
mining  claim  of  the  respondent. 

As  to  the  right  of  the  respondent  to  have  his  title  quieted  as 
against  defendants  we  have  no  doubt.  Respondent  was  in  possession  of 
his  mining  claim  under  a  valid  location  made  prior  to  the  issuance  of 
the  patent  under  which  appellants  claim,  and  was  therefore  in  privity 
with  the  United  States.  He  is  the  equitable  owner  of  the  mining  claim, 
and  while  the  government  holds  the  legal  title  it  holds  it  in  trust  for 
him,  to  issue  a  patent  therefor,  if  he  should  elect  to  obtain  one  upon 
his  complying  with  the  provisions  of  the  law  entitling  him  to  such  is- 
suance. Under  such  circumstances,  while  respondent's  title  to  the  min- 
ing claim  is  only  an  equitable  one,  and  though  the  legal  title  is  in  the 
government,  he  is  entitled  to  have  such  equitable  title  quieted  against 
appellants  who,  though  they  acquired  no  title  whatever  to  the  mining 
claim  of  respondent  under  the  patent  to  the  railroad,  are  nevertheless 
asserting  title  to  it  against  respondent. 

The  order  appealed  from  is  affirmed. 

We  concur:     HENSHAW,  J.;  MELVIN,  J. 


280 


Water  and  Mineral  Cases. 


[California 


LOWER  TULLE  RIVER  DITCH  CO.  v.  ANGIOLA  WATER  CO. 

[Supreme  Court  of  California,  July  26,  1906.] 

149  Cal.  496,  86  Pac.  1081. 

1.  Water  Rights — Appropriation — Conducting  through  Natural  Channels. 
A  person  who  is  making  an  appropriation  of  water  from  a  natural  source  or 
stream  is  not  bound  to  carry  it  to  the  place  of  use  through  a  ditch  or  artificial 
conduit,  or  through  a  ditch  or  canal  cut  especially  for  that  purpose.  He  may  make 
use  of  any  natural  or  artificial  channel  or  natural  depression  which  he  may  find 
available  and  convenient  for  that  purpose,  and  his  appropriation  so  made  will,  so 
far  as  such  means  of  taking  is  concerned,  be  as  effectual  as  if  he  had  carried  it 
through  a  ditch  or  pipe  line  made  for  that  purpose  and  no  other. 

2.  Appropriation — Head    Gate    Not    Essential    to. 

It  is  unnecessary  that  there  should  be  any  head  gate  of  board  or  masonry  at  the 
place  of  diversion  if  a  simple  cut  will  accomplish  the  purpose. 

3.  Diversion  of  Water — Drainage  of  Other  Land,  Effect  of. 

The  purpose  of  draining  one  tract  of   land  does  not  destroy  the  right  to  take 
water  for  the  irrigation  of  other  tracts. 


CASE   NOTE. 

Transporting  Water  Appropriated  in 
Dry  Ravines,  Gulches,  Hollows,  and 
Natural    Channels,    etc. 

I.     In  General,  280. 
II.     In   Dry   Ravines,   Gulches, 
Hollows,     or       Natural 
Channels,  280. 
III.     In  Ditch  op  Another,  281. 
IV.     In  Another  Stream,  282. 
V.     In    Lower    Part    op    Same 

Stream,  283. 
VI.    Abandonment  —  When    Oc- 
curs, 284. 
VII.     Recaption  op  Water,  285. 

I.      In   General. 

An  appropriation  of  water  depends 
upon  the  actual  capture  of  the  water  in 
its  application  to  some  beneficial  use  or 
purpose,  and  not  upon  the  mode  or 
means  by  which  it  is  appropriated  or 
carried.  McCall  v.  Porter,  42  Or. 
49,  56,  70  Pac.  820,  71  Pac.  976   (1902). 

If  one  prevents  a  stream  from  over- 
flowing its  banks  at  low  places  by  means 
of  dams  or  dikes,  thus  confining  it 
within  the  channel  and  carrying  it  down 


to  his  land,  where  he  uses  it  for  neces- 
sary and  reasonable  irrigation,  this  is 
a  valid  appropriation  and  carriage  of 
the  water  so  confined.  McCall  v.  Por- 
ter, 42  Or.  49,  56,  70  Pac.  820,  71  Pac. 
976    (1902). 

II.      In    Dry    Ravines,    Gulches,    Hol- 
lows or  Natural  Channels. 

While  water  must  be  diverted  from 
its  natural  channel  by  means  of  a  ditch 
or  other  structure  to  effect  a  valid  ap- 
propriation, after  the  diversion  any  dry 
ravine,  gulch,  hollow  in  the  land  or 
natural  channel  may  be  used  for  the 
purpose  of  transporting  the  water  the 
whole  or  a  portion  of  the  distance  to 
the  point  where  it  is  to  be  applied  to 
the  land. 

California. — Hoffman  v.  Stone,  7 
Cal.  46,  4  Mor.  Min.  Rep.  520  (1857); 
Merced  Min.  Co.  v.  Fremont,  7  Cal.  317, 
7  Mor.  Min.  Rep.  313,  68  Am.  Dec. 
270  (1857);  Butte  Canal  &  Ditch 
Co.  v.  Vaughn,  11  Cal.  143,  4  Mor.  Min. 
Rep.  552,  70  Am.  Dec.  769  (1858); 
Nevada  &  S.  Canal  Co.  v.  Kidd,  37  Cal. 
282,   315    (1869);    Creighton  v.   Kaweak 


1906] 


Ditch  Co.  v.  Angiola  Wateb  Co. 


281 


4.  Appropriation — Posting   Notice,   Not   Necessary. 

In  order  to  make  a  valid  appropriation  of  water  it  is  not  necessary  to  post  and 
record  a  notice  of  appropriation  as  provided  in  the  Civil  Code,  as  the  method  of 
acquiring  the  right  to  use  the  water  as  therein  described  is  not  exclusive. 

5.  Prior    Appropriation — Outside    of   Code    Provision — Riglits    Acquired. 

A  person  may  by  prior  actual  and  completed  appropriation  and  use,  without 
proceeding  under  the  code,  acquire  a  right  to  the  water  for  his  beneficial  use  which 
will  be  superior  and  paramount  to  the  title  of  one  making  subsequent  appropriation 
from  the   same  stream  in  the  manner  provided  by  the  code. 

Appeal  from  the  Superior  Court  of  Kings  County  on  order  denying 
motion  for  new  trial.     Affirmed. 

For  appellant — Charles  G.  Lamberson. 

For  respondent — H.  Scott  Jacobs,  and  Bradley  &  Farnsworth. 

The  court  found  in  effect  that  plaintiff  was  seised  of  a  prior  right,  as 
against  the  defendant,  to  divert  from  Tulle  River,  a  stream  of  the  water 
thereof  amounting  to  a  continuous  flow  of  twenty-three  feet  per  second, 
and  gave  judgment  enjoining  the  defendant  from  interfering  therewith. 
Neither  party  is  a  riparian  owner  of  the  stream,  both  claiming  solely 


Canal  &  Irr.  Co.,  67  Cal.  221,  7  Pac.  658 
(1885);  Lower  Tulle  River  Ditch  Co. 
v.  Angiola  Water  Co.,  149  Cal.  496,  86 
Pac.    1081    (1906). 

Colorado. — Platte  Valley  Irr.  Co.  v. 
Buckers  M.  &  I.  Co.,  25  Colo.  77,  53 
Pac.   334    (1898). 

/dafto.— Malad  Valley  Irr.  Co.  v. 
Campbell,  2  Idaho  411,  18  Pac.  52 
(1888). 

Oregon. — Simmons  v.  Winters,  21  Or. 
35,  27  Pac.  7,  28  Am.  St.  Rep.  727 
(1891)  ;  McCall  v.  Porter,  42  Or.  49,  56, 
70  Pac.  820,  71  Pac.  976  (1902). 

Utah. — Herriman  Irr.  Co.  v.  Butter- 
field  Min.  Co.,  19  Utah  453,  57  Pac. 
537,   51   L.   R.   A.   930    (1899). 

Washington. — Miller  v.  Wheeler 
54  Wash.  429,  103  Pac.  641    (1909). 

This  is  said  to  be  a  new  doctrine,  ex- 
tended where  the  riparian  rule  has  been 
considered  inapplicable  or  applicable 
only  to  a  limited  extent,  to  local  con- 
ditions. See  Concord  Mfg.  Co.  v.  Robert- 
son, 66  N.  H.  1,  6,  25  Atl.  718   (1890). 

It  would  be  a  harsh  rule  requiring 
those  engaged  in  the  enterprise  of  trans- 
porting   water    for    irrigation    purposes 


to  construct  an  actual  ditch  along  the 
whole  route  through  which  the  waters 
are  carried,  and  to  refuse  them  the 
economy  that  nature  occasionally  affords 
in  the  shape  of  a  dry  ravine,  gulch  or 
canyon.  Hoffman  v.  Stone,  7  Cal.  46, 
4  Mor.   Min.   Rep.   520    (1857). 

III.     In  Ditch  of  Another. 

Water  appropriated  may  be  trans- 
ported in  the  ditch  of  another  person 
or  company,  and  where  this  transporta- 
tion is  by  agreement,  the  right  is  a  con- 
tinuing easement.  Chicosa  Irr.  Ditch 
Co.  v.  Elmore  Ditch  Co.,  10  Colo.  App. 
276,  50  Pac.  731  (1897);  Water  Supply 
&  Storage  Co.  v.  Larimer  &  W.  Irr.  Co., 
24  Colo.  322,  51  Pac.  496  (1897).  See 
Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18 
Colo.  298,  33  Pac.  144  (1893);  Lehi 
Irr.  Co.  v.  Moyle,  4  Utah  327,  9  Pac. 
867  (1886);  Northpoint  Consol.  Irr. 
Co.  v.  Utah  &  S.  L.  Canal  Co.,  16  Utah 
246,  52  Pac.  168  (1898).  Thus  it  has 
been  held  that  where  parties  with  the 
knowledge  and  consent  of  the  owners  of 
a  ditch,  work  upon  and  enlarge  and  as- 
sist   in    enlarging    and    widening    and 


282 


Water  and  Mineral  Cases. 


[California 


by  appropriation  and  use.  The  claim  of  defendant  is  based  on  a  notice 
of  appropriation  under  the  code,  posted  on  August  27,  1897,  and  a  subse- 
quent diversion  and  use  in  pursuance  thereof.  With  respect  to  the 
plaintiff's  claim,  the  finding  is  in  effect  that  it  is  founded  on  an  appropria- 
tion and  use  made  by  N.  P.  Duncan,  plaintiff's  grantor,  in  May,  1897. 
The  sole  objection  presented  on  this  appeal  is  that  the  evidence  is  in- 
sufficient to  show  a  diversion  and  use  by  Duncan  prior  to  the  posting  of 
defendant's  notice  of  appropriation,  or  to  show  that  such  diversion  was 
made  with  the  intent  and  purpose  to  apply  the  water  to  any  beneficial 
use,  or  that  any  beneficial  use  was  made  thereof  prior  to  such  posting. 
We  think  there  is  sufficient  evidence  on  these  points  to  uphold  the 
findings  and  judgment.  Duncan  was  a  witness  for  the  plaintiff,  and 
testified  in  substance  that  in  May,  1897,  in  order  to  get  water  to  irrigate 
his  land,  he  had  a  cut  made  in  the  levee  confining  the  water  of  the 
river,  thereby  diverting  the  water  into  an  excavation  that  he  had  made 
along  the  outside  of  the  levee ;  that  he  had  made  use  of  this  excavation, 
which  was  for  practical  purposes  a  ditch,  to  conduct  the  water  to  his 
land ;  that  he  got  the  water  to  irrigate  his  land  at  that  time,  and  that  by 


repairing  the  same,  with  a  tacit  under- 
standing that  they  are  entitled  to  have 
the  use  of  the  increased  volume  of  water 
thereafter  flowing  in  the  canal,  such  par- 
ties thereby  acquire  a  right  and  title 
to  the  use  of  such  ditch  and  to  take  the 
additional  volume  of  water  therefrom. 
Lehi  Irr.  Dist.  v.  Moyle,  4  Utah  327,  9 
Pac.   867    (1886). 

The  original  proprietors  of  a  canal, 
by  standing  by  and  seeing  the  parties 
working  upon  the  ditch  and  increasing 
its  capacity  and  enlarging  and  improv- 
ing it,  and  allowing  them  to  make  rods 
of  new  ditch  and  accepting  it  as  part 
of  the  main  ditch,  are  estopped  by  their 
course  and  conduct  from  denying  to 
such  parties  the  use  of  the  increased 
volume  of  water  the  improved  ditch 
will  carry.  See  Dickerson  v.  Colgrove, 
100  U.  S.  578,  580,  25  L.  Ed.  618 
(1879)  ;  Fabian  v.  Collins,  3  Mont.  215, 
229,  5  Mor.  Min.  Rep.  20  (1878)  ;  Lehi 
Irr.  Co.  v.  Moyle,  4  Utah  327,  9  Pac. 
867  (1886).  But  where  water  is  trans- 
ported through  a  ditch  that  is  used  in 
common  with  others,  a  party  will  not 
be    entitled    to    divert    from    the    ditch 


more  than  his  proportionate  amount  of 
the  water  flowing  therein.  McPhail  v. 
Forney,  4  Wyo.  556,  35  Pac.  773   (1894). 

Where  a  person  finds  an  abandoned 
ditch  already  constructed  upon  public 
land,  and  utilizes  it  for  the  appropria- 
tion of  water  from  a  stream  for  do- 
mestic purposes  and  for  irrigation,  he 
thereby  acquires  a  title  in  the  ditch 
superior  to  all  others,  if  said  rights  are 
not  lost  by  abandonment.  Utt  v.  Frey, 
106  Cal.  392,  39  Pac.  807  (1895).  Un- 
der such  circumstances,  however,  the 
subsequent  user  of  the  ditch  for  trans- 
porting appropriated  water  will  not  be 
permitted  to  enlarge  the  ditch  beyond 
its  original  capacity  as  against  the  ob- 
jection of  parties  claiming  the  land  un- 
der patent  from  the  United  States. 
Jattun  v.  O'Brien,  89  Cal.  57,  26  Pac. 
635    (1891). 

IV.      In   Another  Stream. 

Quaere  whether  one  can  bring  waters 
from  another  or  independent  source  into 
a  natural  source  the  waters  of  which 
have  been  appropriated,  and  use  the 
channel  of  such  stream  to  conduct  the 
waters  thus  brought  in  to  another  point, 


1906] 


Ditch  Co.  v.  Angiola  Water  Co. 


283 


means  of  it  he  irrigated  about  two  sections  of  his  land  for  the  purpose 
of  growing  thereon  wild  grasses  and  feed.  H.  Clawson  also  testified  that 
he  saw  the  water  in  May,  1897,  running  from  the  river  through  the 
cut  in  the  levee,  and  that  the  water  thus  taken  was  used  during  that 
season  to  irrigate  all  of  Duncan's  land,  together  with  lands  of  others, 
amounting  in  the  aggregate  to  somewhere  near  four  thousand  acres. 
There  was  no  evidence  offered  in  contradiction  of  this  testimony. 

This  was  sufficient  proof  of  the  intent,  the  diversion  or  appropriation, 
and  the  beneficial  use  prior  to  the  posting  of  the  defendant's  notice. 
A  person  who  is  making  an  appropriation  of  water  from  a  natural 
source  or  stream  is  not  bound  to  carry  it  to  the  place  of  use  through  a 
ditch  or  artificial  conduit,  nor  through  a  ditch  or  canal  cut  especially  for 
that  purpose.  He  may  make  use  of  any  natural  or  artificial  channel  or 
natural  depression  which  he  may  find  available  and  convenient  for  that 
purpose,  so  long  as  other  persons  interested  in  such  conduit  do  not 
object,  and  his  appropriation  so  made  will,  so  far  as  such  means  of 
conducting  the  water  is  concerned,  be  as  effectual  as  if  he  had  carried 
it  through  a  ditch  or  pipe  line  made  for  that  purpose  and  no  other. 


to  be  there  diverted  and  used,  sug- 
gested, but  not  decided.  Malad  Valley 
lrr.  Co.  v.  Campbell,  2  Idaho  411,  18 
Pac.   52    (1888). 

An.  appropriator  of  water  may  turn 
it  into  a  natural  stream  and  conduct 
the  water  thus  appropriated  in  that 
stream  to  the  point  where  he  desires  to 
use  it  for  irrigation  purposes.  Hoff- 
man v.  Stone,  7  Cal.  46,  4  Mor.  Min. 
Rep.  520  (1857);  Richardson  v.  Kier, 
37  Cal.  263  (1869);  Ellis  v.  Tone,  58 
Cal.  289  (1881);  Wilcox  v.  Hausch,  64 
Cal.  461  (1884);  Wutchumna  Water 
Co.  v.  Pogue,  151  Cal.  105,  90  Pac.  262 
(1907). 

The  California  laws  provide  that  an 
appropriator  of  water  may  turn  it  into 
a  natural  channel  or  another  stream 
and  mingle  with  the  waters  thereof  and 
then  reclaim  them;  but  in  reclaiming, 
the  waters  of  the  stream  already  ap- 
propriated must  not  be  diminished. 
Kerr's  Cal.  Cyc.  Civil  Code,  §   1413. 

In  Richardson  v.  Kier,  37  Cal.  263 
(1869),  the  defendant  had  appropriated 
waters  for  purposes  of  irrigation  and 
turned  them  into  a  natural  channel 
which      ran     through     the     defendant's 


farming  lands  and  formed  a  connecting 
link   in   the   system   of  carriage. 

In  the  case  of  Ellis  v.  Tone,  58  Cal. 
289  (1881)  the  water  was  taken  from 
the  south  and  middle  forks  of  the 
Mokelmne  River  and  turned  into  the 
Calaveras  River  above  the  head  of  Mor- 
man  Slough  and  carried  down  the  river 
so  as  to  be  taken  out  at  Morman  Slough 
and  used  for  irrigation. 

Where  the  proprietors  of  a  ditch  used 
a  natural  channel,  dry  at  certain  sea- 
sons of  the  year,  as  a  connecting  link 
between  two  canals  constructed  by 
them,  emptying  their  water  by  one  canal 
into  the  channel  and  subsequently  di- 
viding them  by  means  of  a  dam  into  the 
other  canal,  this  arrangement  was  sus- 
tained by  the  court.  Hoffman  v.  Stone, 
7  Cal.  46,  4  Mor.  Min.  Rep.  520  (1857). 

V.  In  Lower  Part  of  Same  Stream. 
After  water  has  been  diverted  from 
its  natural  channel  by  means  of  a  ditch 
or  other  structure,  the  lower  portion 
of  such  stream  from  wnich  the  water  is 
taken  may  be  used  for  purposes  of 
transporting  the  water  appropriated  in 
conducting   it  to   the   point   where   it   is 


284 


Water  and  Mineral  Cases. 


[California 


(Hoffman  v.  Stone,  7  Cal.  49;  Butte  C.  &  D.  Co.  v.  Vaughan,  11  Cal. 
150  [70  Am.  Dec.  769]  ;  Simmons  v.  Winters,  21  Or.  35  [28  Am.  St. 
Rep.  727],  27  Pac.  Rep.  9;  McCall  v.  Porter,  42  Or.  56,  70  Pac.  822; 
Richardson  v.  Kier,  37  Cal.  263.)  For  the  same  reasons  it  is  unnecessary 
that  there  should  be  any  head  gate  of  boards  or  masonry  at  the  place 
of  diversion.  If  a  simple  cut  will  accomplish  the  purpose  of  diverting 
the  water  from  the  stream,  it  is,  if  accompanied  with  a  beneficial  use,  a 
good  appropriation  as  against  others  making  a  subsequent  diversion  and 
use.  There  was  some  testimony  indicating  a  dual  intent  on  the  part 
of  Duncan,  that  is,  a  purpose  not  only  to  get  water  to  irrigate  his  land, 
as  stated,  but  also  to  draw  off  the  flood  water  from  and  prevent  it 
flowing  to  some  other  land  owned  by  him  on  which  he  then  had  growing 
a  crop  of  grain.  This  purpose  to  drain  one  tract  of  land  did  not  vitiate 
or  destroy  the  right  to  take  the  water  for  irrigation  of  other  tracts,  nor 
impair  the  right,  acquired  by  such  appropriation  and  use,  to  take  and 
use  it  for  the  latter  purpose.  The  two  purposes  are  not  inconsistent. 
In  order  to  make  a  valid  appropriation  it  was  not  necessary  for  Duncan 
to  post  and  record  a  notice  of  appropriation  as  provided  in  the  Civil 


to  be  applied.  Simmons  v.  Winters,  21 
Or.  35,  27  Pac.  7,  28  Am.  St.  Rep.  727 
(1891). 

An  appropriator  of  the  water  of  a 
natural  main  stream  has  the  right  to 
conduct  such  water  to  a  point  on  a 
lower  branch  of  the  stream  and  there 
permit  it  to  flow  down  the  natural  chan- 
nel of  the  branch  of  the  stream  to  the 
point  where  he  takes  it  out  to  put  upon 
his  land.  Wutchumna  Water  Co.  v, 
Pogue,  151  Cal.  105,  90  Pac.  362  (1907) 

Since  the  passage  of  the  Act  of  Con 
gress  of  July  26,  1866,  c.  262  (14  Stat 
at  Large  251;  U.  S.  Comp.  Stat.  1901,  p 
1437),  the  prior  appropriator  of  water 
is  entitled  to  right  of  way  for  conveying 
water  along  its  natural  channel.  Ennor 
v.  Raine,  27  Nev.  213,  74  Pac.  2  (1903). 

VI.  Abandonment — When  Occurs. 
Water  diverted,  discharged  into  a  nat- 
ural channel  without  any  intention  of 
reclaiming  it,  is  abandoned,  and  becomes 
part  of  the  natural  stream.  Davis  v. 
Gale,  32  Cal.  26,  28,  4  Mor.  Min.  Rep. 
604,  91  Am.  Dec.  554  (1867);  Barkley 
v.  Tieleke,  2  Mont.  59,  4  Mor.  Min.  Rep. 
666    (1874)  :  Schultz  v.  Sweeny,  19  Nev. 


359,  11  Pac.  253,  3  Am.  St.  Rep.  888 
(1886).  See  Macomber  v.  Godfrey,  108 
Mass.  219,  11  Am.  Rep.  349  (1871); 
Wyman  v.  Hurlburt,  12  Ohio  81,  40  Am. 
Dec.  461    (1843). 

A  person  or  ditch  company  appropri- 
ating water  taking  advantage  of  a  dry 
ravine  to  conduct  the  water  a  portion  of 
the  distance  does  not  thereby  abandon  the 
water  thus  carried  by  it,  and  is 
entitled  to  the  same  rights,  use  and 
enjoyment  as  if  conducting  it 
through  an  artificial  ditch.  Hoffman  v. 
Stone,  7  Cal.  46,  4  Mor.  Min.  Rep.  520 
(1857);  Merced  M.  Co.  v.  Fremont,  7 
Cal.  317,  325,  7  Mor.  Min.  Rep.  313,  68 
Am.  Dec.  270  (1857);  Butte  Canal  & 
Ditch  Co.  v.  Vaughn,  11  Cal.  143,  150, 
4  Mor.  Min.  Rep.  552,  70  Am.  Dec.  769 
(1858)  ;  Nevada  &  S.  Canal  Co.  v.  Kidd, 
37  Cal.  282,  315  (1869).  And  a  person 
developing  water  who  turns  it  into  a 
stream  does  not  thereby  abandon  it,  but 
may  take  it  out  again  lower  down  on 
the  natural  stream  with  a  proper  al- 
lowance for  seepage  and  evaporation. 
Herriman  Irr.  Co.  v.  Keel,  25  Utah  96, 
69   Pac.   719    (1902). 


1906] 


Ditch  Co.  v.  Angiola  Water  Co. 


285 


Code  (§§  1415-1721).  The  method  of  acquiring  a  right  to  the  use  of 
water  as  there  prescribed  is  not  exclusive.  One  may,  by  a  prior  actual 
and  completed  appropriation  and  use,  without  proceeding  under  the  code, 
acquire  a  right  to  the  water  beneficially  used  which  will  be  superior  and 
paramount  to  the  title  of  one  making  a  subsequent  appropriation  from 
the  same  stream  in  the  manner  provided  by  statute.  (Wells  v.  Mantes, 
99  Cal.  583  [34  Pac.  324]  ;  De  Necochea  v.  Curtis,  80  Cal.  401,  20 
Pac.  563  [22  Pac.  198];  Watterson  v.  Saldunbehere,  101  Cal.  112  [35 
Pac.  432]  ;  Burrows  v.  Burrows,  82  Cal.  564  [23  Pac.  146]  ;  Taylor  v. 
Abbott,  103  Cal.  423  [37  Pac.  401] ;  McGuire  v.  Brown,  106  Cal.  672 
[39  Pac.  1060];  Cardoza  v.  Calkins,  117  Cal.  112  [48  Pac.  1010]  ;  Mc- 
Donald v.  Bear  River,  etc.  Co.,  13  Cal.  238;  Kimball  v.  Gearhart,  12 
Cal.  29;  Kelly  v.  Natoma  W.  Co.,  6  Cal.  105;  Hill  v.  King,  8  Cal.  336; 
Hoffman  v.  Stone,  7  Cal.  46.) 

The  judgment  and  order  are  affirmed. 

SLOSS,  J.,  and  ANGELLOTTI,  J.,  concurred. 


VII.      Recaption    of    Water. 

Where  water  from  an  artificial  ditch 
is  turned  into  a  natural  water  course 
and  mingled  with  natural  water  of  the 
stream  for  the  purpose  of  conducting 
it  to  another  point  to  he  there  used,  the 
water  is  not  thereby  abandoned,  but  may 
be  taken  out  and  used  by  the  party  thus 
conducting  it,  provided  that  in  so  doing 
he  does  not  diminish  the  quantity  of  the 
natural  flow  of  the  stream  to  the  injury 
of  any  other  person.  Butte  Canal  & 
Ditch  Co.  v.  Vaughn,  11  Cal.  143,  4  Mor. 
Min.  Rep.  552,  70  Am.  Dec.  769  (1858)  ; 
Paige  v.  Rocky  Ford  Canal  &  Irr.  Co., 
83  Cal.  84,  94,  21  Pac.  1102,  23  Pac. 
875    (1890). 

Persons  bringing  waters  from  another 
source  and  emptying  them  into  the 
stream  the  waters  of  which  have  al- 
ready been  appropriated,  with  the  in- 
tention of  taking  such  waters  out  again, 
have  a  right  to  divert  the  quantity  thus 
emptied  into  the  stream,  less  such 
amount  as  might  be  lost  by  evaporation 
and  other  like  causes.  Burnett  v. 
Whiteside,  15  Cal.  35  (1860);  Paige  v. 
Rocky  Ford  Canal  &  Irr.  Co.,  83  Cal. 
84,  94,  21  Pac.  1102,  23  Pac.  875  (1890)  ; 


Buckers  Irr.  Mill.  &  Imp.  Co.  v.  Far- 
mers' Independent  Ditch  Co.,  31  Colo. 
62,  72  Pac.  49   (1902). 

Compare  Druley  v.  Adam,  102  111. 
177  (1882),  in  which  it  is  held  that  no 
matter  how  water  is  first  brought  to  a 
natural  stream  and  allowed  to  flow 
therein  and  mingle  with  the  waters 
thereof,  such  water  is  thereby  abandoned 
after  it  has  entered  the  lands  of  an- 
other. 

One  conducting  waters  into  a  stream 
from  a  foreign  source  is  not  permitted 
to  divert  the  same  from  the  stream  un- 
less he  shows  that  he  has  not  taken  more 
than  he  turned  in.  Wilcox  v.  Hausch, 
64  Cal.  361,  3  Pac.  108  (1884);  Herri- 
man  Irr.  Co.  v.  Butterfield  Min.  &  Mill. 
Co.,  19  Utah  453,  57  Pac.  537,  51  L.  R. 
A.  930  (1899);  Herriman  Irr.  Co.  v. 
Keel,  25  Utah  96,  115,  69  Pac.  719 
(1902). 

Where  the  evidence  shows  that  more 
water  is  turned  into  the  branch  stream 
than  is  taken  out  from  it  at  the  point 
of  diversion,  it  cannot  be  said  that  the 
diversion  was  a  mere  appropriation  of 
the  natural  waters  flowing  in  such  chan- 
nel. Wutchumna  Water  Co.  v.  Pogue, 
151  Cal.  105,  90  Pac.  362   (1907). 


286 


^Vateb  and  Minebal  Cases. 


[Arkansas 


MANSFIELD  GAS  CO.  v.  ALEXANDER. 


[Supreme  Court  of  Arkansas,  January  2,  1911.] 


Ark. 


133  S.  W.  837. 


1.  Mineral    Lease — Reasonable    Time    for    Exploration    Implied. 

A  long  term  mineral  lease  is  construed  to  imply  a  covenant  for  exploration  within 
a  reasonable  time,  and  continued  operation  thereafter,  notwithstanding  an  express 
provision  for  prospecting  on  adjacent  territory  within  a  year. 

2.  Same — Forfeiture   for    Delay. 

Equity  may  declare  a  forfeiture  of  a  mineral  lease  for  breach  of  an  implied  cove- 
nant to  explore  and  operate  within  a  reasonable  time. 

Appeal  from  Scott  Chancery  Court,  J.  V.  Bourland,  Chancellor. 

Action  to  cancel  a  mineral  lease  by  W.  R.  Alexander  against  the  Mans- 
field Gas  Company.     Decree  for  plaintiff.     Defendant  appeals. 

Affirmed. 

For  appellant — Youmans  &  Youmans. 

For  appellee — Read  &  McDonough. 

FRAUENTHAL,  J.  This  was  an  action  instituted  by  the  appellee 
to  cancel  a  mineral  lease  which  by  due  and  proper  assignment  by  the  les- 
see had  been  transferred  to  the  appellant.  The  lease  was  executed  on 
March  8,  1901,  by  the  lessor,  who  was  the  owner  of  the  land,  in  considera- 
tion of  $1  and  the  covenants  therein  contained.  By  its  terms  it  leased  the 
lands  therein  described  for  a  term  of  50  years  for  the  purpose  of  mining, 
boring,  and  operating  lead,  zinc,  coal,  gas,  oil,  and  other  minerals  and  gave 
to  the  lessee  the  exclusive  right  to  prospect  for  and  mine  said  minerals 
during  the  continuance  of  the  term  of  the  lease.  It  gave  to  the  lessee  the 
right  to  erect  all  necessary  buildings  and  make  ways  of  ingress  and  egress 
upon  the  premises  to  carry  on  the  business  of  doing  said  prospecting 
and  mining,  and  the  right  to  have  possession  whenever  the  lessee  was 
ready  to  commence  operation.  In  event  the  lessee  was  successful  in 
obtaining  said  minerals  on  the  land  the  lessee  agreed  to  pay  to  the  lessor 


NOTE. 

On   the   question   of   forfeiture    as   af- 
fected by  provision  for  the  payment  of 


rent,    see    note    to    Marshall    v.    Forest 
Oil  Co.,  21  Mor.  Min.  Rep.  179. 


1911]  Mansfield  Gas  Co.  v.  Alexandeb.  287 

a  certain  per  cent,  of  the  value  of  such  minerals ;  and  in  event  of  a  failure 
to  obtain  any  minerals  by  reason  of  such  operations  it  was  provided  that 
the  lessee  should  have  the  right  to  remove  all  buildings  and  machinery 
placed  by  it  on  the  land.  It  was  also  provided  that  if  the  lessee  failed 
"to  begin  work  toward  prospecting  and  developing  on  these  lands  or  other 
lands  within  four  miles  of  these  above  described  within  the  period  of  one 
year  from  the  date  hereof,  then  these  presents  and  everything  contained 
therein  shall  cease  and  be  forever  null  and  void." 

It  appears  from  the  testimony  that  the  appellant  owned  a  large  number 
of  similar  leases  from  different  persons  in  this  section,  upon  some  of 
which  it  had  made  a  little  development  in  obtaining  gas.  It  bored  three 
or  four  wells  within  a  mile  and  one-half  of  the  land  in  controversy  and 
within  one  year  from  the  date  of  said  lease;  but  it  made  no  search  for 
any  gas  or  minerals  on  the  land  in  question,  and  made  no  development 
of  any  nature  thereon.  Some  years  prior  to  the  institution  of  this  suit 
the  appellee  demanded  of  appellant  that  it  make  search  and  operation  of 
his  said  land  for  said  minerals,  but  appellant  refused  to  comply  with 
such  demand,  and  indicated  that  it  would  not  make  any  search  or  develop- 
ment until  it  should  determine  that  it  would  be  profitable  to  appellant 
to  do  so.  In  the  meanwhile  it  had  developed  gas  in  some  other  fields 
which  was  sufficient  to  serve  appellant's  needs  and  purposes.  The 
chancery  court  found  that  the  appellant  and  its  grantor  had  failed  and 
refused  to  develop  the  leased  lands  in  any  way  or  manner  by  boring, 
mining,  or  operating  for  any  of  the  minerals  mentioned  in  the  lease,  and 
refused  to  permit  it  to  be  done  by  others ;  and  that  by  reason  of  its  failure 
to  develop  the  lands  for  said  purposes,  or  to  permit  it  to  be  done  by 
others,  appellant  "had  forfeited  said  lease."  It  thereupon  entered  a 
decree  canceling  said  lease. 

In  deciding  whether  or  not  the  lower  court  was  right  in  entering 
a  decree  canceling  said  lease  we  think  it  only  necessary  to  determine 
whether  or  not  the  appellant  and  those  from  whom  it  obtained  the  lease 
have  failed  and  refused  to  perform  the  covenants  imposed  upon  them 
by  the  lease  under  such  circumstances  as  to  work  a  forfeiture  thereof;  for 
equity  may  enforce  a  forfeiture  of  a  contract  of  lease  giving  the  exclu- 
sive right  to  explore  for  minerals  upon  a  tract  of  land  where  it  would 
be  inequitable  to  permit  the  lessee  longer  to  assert  such  right  by  reason  of 
his  continued  default.  The  respective  rights  of  the  parties  must  be 
determined  by  the  respective  obligations  which  they  assumed  by  virtue 
of  the  contract  of  lease  and  by  the  manner  in  which  they  have  performed 
or  failed  to  perform  those  obligations.  What  then  were  the  mutual  obli- 
gations entered  into  by  the  execution  of  this  lease?  The  contract  was 
made  for  the  mutual  benefit  of  the  parties.  The  purpose  of  the  lease 
was  not  to  make  a  grant  of  the  land  or  to  transfer  any  estate  therein.     It 


288  Watee  and  Minekal  Cases.  [Arkansas 

only  gave  a  right  to  the  lessee  to  search  for  minerals  and  an  interest 
in  the  minerals  when  so  found  and  taken  out.  The  consideration  moving 
to  the  lessor  for  the  execution  of  the  lease  was  not  the  nominal  sum 
of  $i  mentioned  therein,  but  was  obviously  the  royalties  upon  the  minerals 
which  should  be  discovered  and  taken  from  the  land.  The  lessor  was  to 
obtain  a  certain  percentage  of  the  minerals  that  would  be  thus  discovered 
and  mined.  And  this  was  the  only  real  benefit  that  would  accrue  to  him 
from  the  execution  of  the  lease;  this  was  his  sole  compensation.  The 
only  way  in  which  he  could  obtain  this  compensation  and  benefit  would 
be  by  the  exploration  of  the  land  and  discovery  of  the  minerals  thereon. 
With  the  view  of  obtaining  such  benefit  the  lessor  executed  the  lease, 
relying  on  the  lessee  to  make  such  explanation  and  obtain  such  minerals. 
That  was  the  evident  purpose  of  the  execution  of  the  lease.  The  lease 
was  not  executed  for  speculative  purposes,  but  for  present  benefits  or  for 
benefits  to  be  obtained  within  a  reasonable  time,  and  the  lessee  must  have 
so  understood  the  contract  because  it  gave  no  other  hope  of  compensation 
to  the  lessor  therefor. 

There  was  therefore  an  implied  covenant  in  the  lease  on  the  part  of  the 
lessee  to  search  for,  and,  if  found,  to  obtain  the  minerals  from  the  land. 
'Although  the  lease  is  silent,  the  law  implies  a  condition  on  the  part  of  the 
lessee  for  diligent  exploration,  development  and  operation  in  good  faith, 
and  whatever  is  necessary  to  the  accomplishment  of  that  which  is  ex- 
pressly contracted  to  be  done  under  an  oil  or  gas  lease  is  part  of  the  con- 
tract although  not  specified,  and  when  so  incorporated  by  implication  is  as 
effectual  as  if  expressed."  27  Cyc.  728.  And  the  general  rule  for  the 
construction  of  mineral  leases,  such  as  is  involved  in  this  case,  is  that  the 
law  implies  a  covenant  upon  the  part  of  the  lessee  to  make  the  exploration 
and  search  for  the  minerals  in  a  proper  manner  and  with  reasonable  dili- 
gence and  to  work  the  mine  or  well  when  the  mineral  is  discovered  so  that 
the  lessor  may  obtain  the  compensation  which  both  parties  must  have 
had  in  contemplation  when  the  agreement  was  entered  into. 

In  the  case  of  Ray  v.  Natural  Gas  Co.,  138  Pa.  576,  20  Atl.  1065,  12 
L.  R.  A.  290,  21  Am.  St.  Rep.  922,  in  speaking  of  such  a  lease,  the  court 
said:  "Whilst  the  obligation  on  the  part  of  the  lessee  to  operate  is  not 
expressed  in  so  many  words  it  arises  by  necessary  implication.  *  *  * 
If  a  farm  is  leased  for  farming  purposes,  the  lessee  to  deliver  to  the 
lessor  a  share  of  the  crops  in  the  nature  of  rent,  it  would  be  absurd  to  say 
because  there  was  no  express  engagement  to  farm  that  the  lessee  was 
under  no  obligation  to  cultivate  the  land.  An  engagement  to  farm  in  a 
proper  manner  and  to  a  reasonable  extent  is  necessarily  implied."  And 
this  principle  is  peculiarly  applicable  to  the  character  of  lease  involved  in 
this  case;  and  the  implied  covenant  on  the  part  of  the  lessee  to  make 
diligent  search  and  operation  of  the  land  must  be  performed  in  order  to 


1911]  Mansfield  Gas  Co.  v.  Alexander.  289 

keep  such  a  lease  in  existence  and  to  avoid  its  forfeiture.  In  speaking 
of  such  character  of  leases  Mr.  Thornton  in  his  work  on  The  Law  Relating 
to  Oil  and  Gas,  §  127,  says :  "It  is  the  duty  of  the  lessee  to  make  dili- 
gent search  and  operation  of  the  leased  premises,  and  it  is  not  necessary 
that  a  provision  for  such  search  or  operation  be  inserted  in  the  lease ;  for 
it  is  an  implied  covenant  in  every  oil  and  gas  lease  that  a  diligent  search 
and  operation  will  be  prosecuted.  And  where  the  only  consideration  was 
the  royalty,  a  failure  on  the  part  of  the  lessee  to  commence  operations 
for  eight  months  was  held  to  be  an  abandonment." 

The  plain  object  of  such  leases  is  that  there  will  be  a  diligent  seasch 
made  on  the  leased  land  for  the  minerals  and  if  discovered  a  diligent 
operation  thereof.  By  this  lease  an  exclusive  right  to  make  such  search 
and  to  mine  the  discovered  product  was  given  to  the  lessee  for  a  long 
term  of  years.  The  sole  compensation  of  the  lessor  was  in  the  royalties 
which  he  might  receive,  and  if  there  was  no  product,  there  was  no  benefit 
to  the  lessor.  In  the  case  of  Huggins  v.  Daley,  99  Fed.  606,  40  C.  C.  A. 
12,  48  L.  R.  A.  320,  there  was  before  the  court  a  lease  giving  the  right 
of  exploration  and  development  of  the  land  for  minerals  to  the  lessee. 
In  that  case  the  court  said :  "Where  the  sole  compensation  to  the  land- 
owner is  a  share  of  what  is  produced,  there  is  always  an  implied  cove- 
nant for  diligent  search  and  operation.  There  is  perhaps  no  other 
business  in  which  prompt  performance  is  so  essential  to  the  rights  of  the 
parties  or  delays  so  likely  to  prove  injurious.  *  *  *  Where  the  only 
consideration  is  prospective  royalty  to  come  from  exploration  and  devel- 
opment, failure  to  explore  and  develop  renders  the  agreement  a  mere 
nudum  pactum  and  works  a  forfeiture  of  the  lease ;  for  it  is  of  the  very 
essence  of  the  contract  that  work  should  be  done.  *  *  *  No  such 
lease  should  be  construed  as  to  enable  the  lessee  who  has  paid  no  con- 
sideration to  hold  it  merely  for  speculative  purposes,  without  doing  what 
he  stipulated  to  do,  and  what  was  clearly  in  the  contemplation  of  the 
lessor  when  he  entered  into  the  agreement." 

In  the  case  of  Maxwell  v.  Todd,  112  N.  C.  677,  16  S.  E.  926,  the 
court  construed  a  mineral  lease  which  gave  the  lessee  an  exclusive  right 
to  explore  a  tract  of  land  for  a  long  term  of  years  and  to  take  therefrom 
the  minerals  that  might  be  discovered,  paying  to  the  lessor  a  part  of  the 
proceeds  received  from  such  minerals.  There  was  no  stipulation  in  the 
lease  that  it  would  be  forfeited  for  a  failure  to  explore  the  land  or  to  take 
the  minerals  that  might  be  discovered  therefrom.  In  that  case  the  court 
held  that  "the  law  will  construe  the  contract  as  if  such  a  stipulation  had 
been  expressly  written  therein,  and  will  adjudge  such  lease  to  be  forfeited 
if  within  a  reasonable  time  the  lessee  fails  to  carry  out  the  purpose  of 
the  lease." 

W.  &  M— 19 


290  Water  and  Mineral  Cases.  [Arkansas 

In  the  construction  of  mineral  leases  such  as  is  involved  in  this  case, 
the  authorities  uniformly  held  that  there  is  an  implied  obligation  on  the 
part  of  the  lessee  to  proceed  with  the  search  and  also  with  the  develop- 
ment of  the  land  with  reasonable  diligence  according  to  the  usual  course 
of  such  business,  and  that  a  failure  to  do  so  amounts  in  effect  to  an 
abandonment  and  works  a  forfeiture  of  the  lease.  Petroleum  Co.  v.  Coal, 
Coke  &  Mfg.  Co.,  89  Tenn.  381,  18  S.  W.  65;  Conrad  v.  Morehead,  89 
N.  C.  31 ;  Oliver  v.  Goetz,  125  Mo.  370,  28  S.  W.  441 ;  Island  Coal  Co. 
v.  Combs,  152  Ind.  379,  53  N.  E.  452;  Aye  v.  Philadelphia  Co.,  193  Pa. 
451,  44  Atl.  555,  74  Am.  St.  Rep.  696;  Rawlings  v.  Armel,  70  Kan.  778, 
79  Pac.  683;  Price  v.  Block,  126  Iowa,  304,  101  N.  W.  1056;  Cowan  v. 
Radford  Co.,  83  Va.  547,  3  S.  E.  120;  Guffy  v.  Hukill,  34  W.  Va.  49,  11 
S.  E.  754,  8  L.  R.  A.  759,  26  Am.  St.  Rep.  901 ;  Bay  State  Petroleum  Co. 
v.  Penn.  Lubricating  Co.,  121  Ky.  637,  87  S.  W.  1102.  The  lease  in- 
volved in  this  case  gave  to  the  lessee  the  exclusive  right  to  prospect  for 
minerals  upon  the  land  described  therein  and  to  take  therefrom  the  min- 
erals that  might  be  discovered ;  it  gave  this  exclusive  right  for  a  period 
of  50  years  and  it  did  not  specify  any  time  when  the  search  or  the 
development  should  be  made  on  the  land  thus  leased.  The  sole  compen- 
sation which  the  lessor  was  to  receive  for  the  execution  of  the  lease  was 
a  certain  per  cent,  of  the  value  of  the  minerals  that  should  be  mined.  Ac- 
cording to  the  uniform  holding  of  the  authorities  the  law  will  read  into 
this  lease  a  covenant  on  the  part  of  the  lessee  that  it  will  with  due  and 
proper  diligence  search  the  land  described  in  the  lease  for  minerals  and 
will  with  due  and  proper  diligence  develop  the  same.  This  implied  cove- 
nant is  in  effect  a  condition  upon  which  the  lease  was  made ;  a  failure  or 
refusal  to  perform  that  condition  results  in  a  forfeiture  of  the  lease. 

But  it  is  urged  that  the  lease  expressly  provides  that  a  failure  to  pros- 
pect and  develop  on  these  lands  or  on  other  lands  within  four  miles 
thereof  within  one  year  from  the  date  of  the  lease  would  work  a  for- 
feiture thereof;  and  that  this  express  provision  for  a  forfeiture  excludes 
any  implied  forfeiture  for  any  other  reason.  It  is  true  that  when  such 
a  lease  expressly  provides  when  and  how  the  search  for  the  minerals 
shall  be  made  upon  the  leased  lands,  then  there  can  be  no  reason  for 
implication  relative  thereto,  and  such  provision  expressly  made  must 
control.  But  in  the  case  at  hand  the  lease  did  not  expressly  provide  when 
the  exploration  and  development  of  the  leased  land  should  commence. 
The  compensation  which  the  lessor  would  receive  could  only  come  from 
a  development  of  mines  upon  his  own  land.  The  exploration  of  and 
securing  gas  from  adjoining  land  instead  of  being  a  benefit  would  actually 
result  in  an  injury  to  his  land,  because  it  would  tend  to  tap  and  take 
from  his  land  the  gas  thereon.    The  plain  purpose  of  the  lease  was  that 


1911]  Mansfield  Gas  Co.  v.  Alexandee.  291 

the  lessee  should  develop  the  land  of  the  lessor,  and  this  proviso  only 
named  the  time  and  place  when  and  where  the  operations  should  begin 
for  the  work  of  prospecting  and  development.  In  event  no  such  provi- 
sion had  been  in  the  lease,  the  law  would  have  implied  that  the  lessee 
agreed  to  begin  such  operations  within  a  reasonable  time.  But  where 
in  such  leases  there  is  no  stipulation  as  to  when  and  how  the  develop- 
ment shall  continue,  then  the  law  also  implies  that  the  lessor  covenanted 
to  prosecute  the  operations  with  due  and  proper  diligence  after  beginning 
same.  It  will  not  be  sufficient  to  simply  begin,  but  the  operations  must 
also  continue.  Now,  in  this  provision  of  the  lease,  there  is  nothing  said 
about  the  continuation  of  the  prosecution  of  the  work  of  search  and  devel- 
opment upon  the  land ;  it  solely  provides  for  the  beginning  of  such  work. 
There  is  no  stipulation  in  the  lease  indicating  when  and  how  the  work 
shall  be  continued  after  it  is  begun.  If  the  lessee  under  this  provision 
had  bored  one  well  on  the  leased  land  or  on  other  lands  within  four 
miles  thereof  within  one  year  from  the  date  of  the  lease  and  had  found 
no  oil,  gas,  or  other  mineral,  it  would  have  complied  with  all  that  this 
provision  required,  although  it  then  ceased  all  further  operations.  But 
such  was  clearly  not  the  intent  or  purpose  of  this  lease.  In  this  proviso 
it  only  named  when  and  where  the  work  toward  prospecting  and  devel- 
opment should  begin,  but  it  did  not  provide  that  the  exploration  and  de- 
velopment should  continue  on  the  other  lands  situated  within  four  miles 
of  the  leased  land.  Nor  did  it  provide  that  after  having  begun  such 
exploration  or  development  within  one  year  from  the  date  of  the  lease 
it  could  then  cease  all  operation  and  still  hold  the  lease.  Nothing  is 
herein  stipulated  as  to  when  or  where  the  prosecution  of  this  work 
should  be  made  after  it  was  thus  begun.  We  conclude  that  the  proper 
construction  of  the  lease  is  that  the  lessee  covenanted  that,  after  having 
begun  the  work  of  prospecting  and  developing  on  the  leased  land  or  on 
other  lands  within  one  year  from  the  date  of  the  lease,  it  would  then  con- 
tinue a  diligent  search  and  operation  of  the  land  described  in  the  lease. 

In  Thornton  on  Law  Relating  to  Oil  and  Gas,  §  141,  it  is  said:  "A 
cessure  of  work  will  operate  as  a  termination  of  a  lease  by  abandon- 
ment, especially  where  the  first  or  second  well  proves  to  be  a  dry  one. 
*  *  *  So,  too,  if  he  (the  lessee)  is  to  begin  the  development  of  the 
leased  premises  by  a  certain  time,  he  must  prosecute  the  work  in  the  man- 
ner in  which  the  business  is  ordinarily  carried  on,  and  with  ordinary  dil- 
igence until  the  search  for  oil  or  gas  is  ended,  either  by  finding  it  and 
thereafter  operating  the  premises,  or  by  demonstrating  that  there  is  no 
oil  or  gas  and  surrendering  the  lease." 

The  appellant  was  not  bound  by  the  lease  to  begin  the  work  of  pros- 
pecting upon  the  leased  land.     It  had  the  right  to  begin  such  work  on 


292  Water  and  Mineral  Cases.  [Arkansas 

that  land  or  on  other  land  within  four  miles  thereof  and  within  one 
year  from  the  date  of  the  lease.  But  after  having  thus  begun  the  work 
it  had  no  right  then  to  quit  without  surrendering  the  lease.  By  the 
implied  covenants  of  this  lease  it  was  then  bound  to  continue  its  search 
and  operation  upon  the  lands  described  in  the  lease.  It  was  then  bound 
to  operate  on  this  land  or  quit,  it  could  not  after  having  begun  the  work 
of  search  and  operation  on  other  land  then  fail  to  search  and  operate  on 
the  leased  land.  It  was  bound  then  to  continue  its  search  and  develop- 
ment on  the  leased  land,  or  quit  and  surrender  the  lease.  Steelsmith  v. 
Gartlan,  45  W.  Va.  27,  29  S.  E.  978,  44  L.  R.  A.  107;  Munroe  v.  Arm- 
strong, 96  Pa.  307.  The  chancellor  found  that  the  appellant  and  its 
grantor  did  not  continue  the  work  of  prospecting  and  developing  on  the 
lands  mentioned  in  the  lease  with  due  and  proper  diligence,  and  that  it 
failed  and  refused  to  do  this  for  such  a  length  of  time  as  to  work  a 
forfeiture  of  the  lease.  This  finding  we  think  is  supported  by  the  evi- 
dence. For  eight  years  prior  to  the  institution  of  this  suit  appellant  has 
failed  to  continue  the  search  and  development  of  the  appellee's  land,  and 
in  effect  has  refused  to  prosecute  any  operations  on  this  land,  although 
it  claims  that  it  does  not  intend  to  abandon  the  lease.  Its  protracted  delay 
and  long-continued  failure  to  do  the  things  contemplated  by  the  lease 
and  which  the  law  implies  it  covenanted  to  do,  is  equivalent  to  an  aban- 
donment of  the  lease  by  it.  The  chancellor  we  think  was  therefore 
right  in  entering  a  decree  canceling  the  lease. 
The  decree  is  affirmed. 


1905-1906] 


Charlton  v.  Kelly. 


293 


CHARLTON  v.  KELLY. 

[Third   Division.     Fairbanks,    1905-1006.] 
Xo.   373. 

2  Alaska  532. 

1.  Mining   Claims — Essentials   of    Location. 

The  regulations  prescribed  by  law  to  make  a  valid  location  of  a  mining  claim 
in   Alaska    are:      (1)    Discovery   of   mineral   upon   or   within   the    ground   located; 

(2)  marking   of   boundaries    upon   ground    so   that   they   may   be    readily   traced; 

(3)  recording  of  notice  within  ninety  days  from  discovery. 

2.  Same — Order  of  Acts  of  Location   Immaterial. 

The  order  in  which  acts  of  location  are  done  is  immaterial,  provided  they  are  all 
completed  before  rights  of  others  have  intervened. 

3.  Same — Discovery  after  Other  Acts. 

It     is     not    essential    that    discovery    precede    or    coexist    with    demarcation    of 
boundaries  before  recording  of  notice. 

4.  Same — Validates  Location. 

Discovery  subsequent  to  marking  the  boundaries  and  recording  of  notice  perfects 
location  unless  bona  fide  rights  have  intervened. 


CASE    NOTE. 

The  Necessity  for  and  Effect  of  Dis- 
covery of  Mineral  on  Mining 
Location. 

I.     Scope  of  Note,  294. 

II.     Discovert  Is  Essential,  294. 

A.  In  General,  294. 

B.  Presumptions,  299. 

C.  Where  Boundaries 

Are  Extended,  299. 

D.  Mexican  Law,  299. 

III.  Essential    to    Placer    Lo- 

cation, 300. 

A.  In  General,  300. 

B.  Oil  Lands,  301. 

C.  Association   Claims, 

302. 

IV.  Object    and    Construction 

op  the  Law,  302. 
V.     Order    of    Time     of    Per- 
formance of  Acts  of  Lo- 
cation, 303. 

A.  Order  Immaterial,  303. 

B.  Rule  Applies   to  Pla- 

cer Locations,  308. 

C.  Montana  Rule,  308. 

D.  Ontario  Rule,  309. 

VI.     Same    Discovert    for   Two 
Locations,  309. 


VII.     Place  of  Discovert,  310. 
A.    Must     Be     on     Land 
Claimed,  310. 

B.  Anywhere      on      Land 

Claimed,  311. 

C.  In     Discovert     Shaft, 

312. 

1.  In  General,  312. 

2.  Open    Cut    or   Adit, 

314. 

3.  Sinking  Second  Shaft, 

314. 

D.  In  Tunnel,  315. 

E.  On  Ant  Part  of  Lode, 

315. 

F.  On  Patented  Land,  316. 

G.  Within  Town  Site,  317. 
H.    On  Boundart  of  Claim, 

318. 
I.      Within  Another  Claim, 
318. 

VIII.     Effect  of  Loss  of  Discov- 
ert, 320. 

A.  In  General,  320. 

B.  Bt  Change  of  Bound- 

aries, 320. 

C.  Bt  Sale,  320. 

D.  Bt  Subsequent  Patent 

to  Another,  321. 

E.  Discovert  on  Remain- 

der, 322. 


IX. 


Bt  Knowledge  and  Adop- 
tion, 322. 


294 


"Water  and  Mineral  Cases. 


[Alaska 


5.  Same — Location — What  Sufficient  to   Support   Ejectment. 

Until  all  three  acts  of  location  are  performed,  no  title  passes  to  claimant 
sufficient  to  maintain  ejectment  unless  he  has  marked  boundaries  and  recorded 
notice  and  is  in  actual  possession,  attempting  in  good  faith  to  make  discovery. 

6.  Same — Marking   Boundaries. 

Claim  must  be  so  distinctly  marked  upon  the  ground  that  boundaries  can  be 
readily  traced. 

7.  Same — Stakes  at  Corners. 

Setting  stakes  at  each  corner  of  a  claim  and  at  the  center  of  end  line  is  not 
necessarily  a  proper  marking. 

8.  Same — Condition  of  Country. 

The  question  of  whether  boundaries  are  sufficiently  marked  upon  the  ground 
depends  somewhat  upon  the  conformation  of  the  ground  and  the  surrounding  con- 
ditions. What  might  be  sufficient  in  the  case  of  a  comparatively  level  and  fair  surface, 
might  not  necessarily  meet  the  requirements  of  the  law  in  a  hilly  or  brushy  country. 
Where  the  country  is  broken  or  the  view  from  one  stake  or  monument  to  another 
is  obstructed  by  intervening  timber  or  brush,  it  may  be  necessary  to  blaze  trees 
along  the  line  or  cut  away  the  brush  or  set  more  stakes  at  such  distance  that  they 
may  be  seen  from  one  to  another  in  a  way  to  indicate  the  lines. 

9.  Same — Question  of  Fact. 

The  question  of  what  is  a  sufficient  marking  of  boundaries  is  not  one  for  the 
court;  but  it  is  to  be  determined  by  the  jury  from  the  evidence  and  from  the  topog- 
raphy of  the  ground  in  question  whether  or  not  a  sufficient  marking  of  the  boundaries 
of  the  claim  has  been  made  so  that  the  same  could  be  readily  traced  by  a  person 
making  a  reasonable  effort  to  do  so. 

10.  Same — What    Sufficient. 

Stakes  set  at  each  corner  of  the  claim,  with  center  stake  at  each  end,  with 
reference  to  some  other  natural  object  or  permanent  monument  in  the  locality, 
such  as  another  well-known  claim,  is  a  sufficient  compliance  with  the  requirements 
of  the  statute. 


I.     Scope  of  Note. 

In  nearly  all  of  the  mining  states, 
statutes  supplementary  to  the  acta  of 
congress,  providing  certain  essentials  to 
a  valid  discovery,  and  requirements  in 
addition  to  those  of  the  federal  law,  have 
been  enacted, — such  as  the  doing  of  cer- 
tain work  within  a  certain  time;  work  of 
a  certain  value;  the  sinking  of  a  shaft  to 
a  certain  depth;  the  finding  of  a  well- 
defined  crevice  showing  mineral -bearing 
rock  in  place;  the  disclosing  of  one  wall 
of  the  vein,  etc.  This  note  will  not  treat 
of  these  peculiar  local  statutes,  except  in 
so  far  as  they  serve  to  explain  or  illus- 
trate general  principles  or  show  the  con- 
struction of  the  federal  law  on  the  sub- 
ject.    It  may  be  said,  however,  that  an 


observance  of  the  requirements  of  these 
local  statutes,  when  not  in  conflict  with 
the  federal  law,  is  as  necessary  as  the 
observance  of  the  requirements  of  the 
federal  law  itself;  and  the  same  may 
be  said  of  the  rules  and  regulations  of 
the  local  mining  district  wherein  the 
location  is  made. 

II.      Discovery.  Is  Essential. 
A.      In  General. 

The  discovery  of  a  vein  or  lode  within 
the  limits  of  a  lode  claim  is  essential  to 
a  valid  location  of  the  claim. 

United  States.  Jackson  v.  Roby,  109 
U.  S.  440,  3  Sup.  Ct.  301,  27  L. 
Ed.     990     (1883);     Erhardt     v.     Boaro. 


1905-1906] 


Charlton  v.  Kelly. 


295 


11.  Same — Sufficiency  of  Location  Notice. 

Absolute  technical  strictness  in  the  preparation  of  a  notice  of  location  is  not 
required. 

12.  Same — Object  of  Notice. 

The  object  of  notice  of  location  is  to  prevent  swinging  of  claim  or  change  of 
boundaries,  and  to  guide  subsequent  locator  and  afford  him  information  as  to  extent 
of  claim. 

13.  Same — Discovery   Essential. 

Mere  marking  of  boundaries  and  posting  a  recording  of  notice  of  location,  give 
no  title  to  locator,  nor  do  they  constitute  possession. 

14.  Same — Sufficiency  of   Discovery. 

Discovery  is  sufficient  where  the  mineral  found  is  such  that  a  person  of  ordinary 
prudence  would  be  justified  in  the  further  expenditure  of  his  labor  and  means  with 
a  reasonable  prospect  of  success  in  developing  a  valuable  mine,  and  the  facts 
within  the  observation  of  the  discoverer  and  which  induce  him  to  locate  should 
be  such  as  would  justify  a  man  of  ordinary  prudence,  not  necessarily  a  skilled 
miner,  in  the  expenditure  of  time  and  money  in  the  development  of  the  property. 

15.  Same — Construction  of  Rule. 

When  controversy  is  between  two  mineral  claimants,  the  rule  respecting  suffi- 
ciency of  discovery  is  more  liberal  than  when  it  is  between  a  mineral  claimant  and 
one  seeking  to  make  an  agricultural  entry. 

16.  Same — Conjecture   Not  Sufficient. 

To  constitute  discovery  more  than  mere  conjecture,  hope,  or  even  indications,  is 
required. 


113     U.     S.     527,     5     Sup.     Ct.     560, 

28  L.  Ed.  1113  (1885);  Gwellem 
v.  Donnellan,  115  U.  S.  45,  5  Sup.  Ct. 
1110,  29  L.  Ed.  340  (1885)  ;  O'Reilly  v. 
Campbell,  116  U.  S.  418,  6  Sup.  Ct.  421, 

29  L.  Ed.  669  (1886)  ;  King  v.  Amy  & 
S.  Consol.  Min.  Co.,  152  U.  S.  222,  14 
Sup.  Ct.  510,  38  L.  Ed.  419  (1893); 
Cresman  v.  Miller,  197  U.  S.  313,  25  Sup. 
Ct.  468,  49  L.  Ed.  770  (1905)  ;  affirming 
140  Cal.  440,  73  Pac.  1083,  74  Pac.  444, 
98  Am.  St.  Rep.  63  (1903)  ;  North  Noon- 
day Min.  Co.  v.  Orient  Min.  Co.,  6  Sawy. 
299,  1  Fed.  522  (1880);  Van  Zandt  v. 
Argentine  Min.  Co.,  2  McC.  159,  8  Fed. 
725,  4  Mor.  Min.  R.  441  (1881)  ;  Harris 
v.  Equator  Min.  Co.,  3  McC.  14,  8  Fed. 
863  (1881);  Jupiter  Min  Co.  v.  Bodie 
Consl.  Min.  Co.,  7  Sawy.  96,  11  Fed.  666 
(1881);  Cheeseman  v.  Shreeve,  40  Fed. 
787  (1889)  ;  Book  v.  Justice  Min.  Co. 
58  Fed.  106  (1893);  Smith  v.  Newell, 
86  Fed.  56  (1898)  ;  Shoshone  Min.  Co.  v. 
Reuter,  87  Fed.  801,  31  C.  C.  A.  223,  59  U. 
S.  App.  538  (1898)  ;  Erwin  v.  Perego,  93 
Fed.  608,  35  C.  C.  A.  482  (1899),  affirm- 
ing 85  Fed.  904    (1898);   Nevada-Sierra 


Oil  Co.  v.  Miller,  97  Fed.  681  (1899); 
Uinta  Tunnel  Min.  Transp.  Co.  v.  Ajax 
Gold  Min.  Co.,  141  Fed.  563,  73  C.  C.  A. 
35  (1905)  ;  Lange  v.  Robinson,  148  Fed. 
799,  79  C.  C.  A.  1  (1906);  Re  Antedi- 
luvian Lode,  8  Land  Dec.  602  (1889)  ;  In 
re  Independence  Lode,  9  Land  Dec.   571 

(1889)  ;  In  re  Lone  Dane  Lode,  10  Land 
Dec.  53  (1890);  Waterloo  Min.  Co.  v. 
Doe,  17  Land  Dec.  Ill  (1893)  ;  Etling  v. 
Potter,  17  Land  Dec.  424  (1893)  ;  In  re 
Winter  Lode,  22  Land  Dec.  362  (1896)  ; 
Reins    v.    Murray,    22     Land     Dec.     409 

(1896);  Reins  v.  Raunheim,  28  Land 
Dec.  526  (1899);  Bunker  Hill,  etc.  Co. 
v.  Shoshone  Min.  Co.,  33  Land  Dec.  142 

(1904). 


v.  Steelsmith,  1 
Redden  v.  Harlan,  2 
Bulette  v.  Dodge,  2 


Alaska. — Moore 
Alaska  121   (1901) : 
Alaska  402    (1905) 
Alaska  427   (1905). 

California. — Page  v.  Summers,  70  Cal. 
121,  12  Pac.  120  (1886);  Tuolumne 
Consl.  Min.  Co.  v.  Maeher,  134  Cal.  583, 
66  Pac.  863  (1901)  ;  Miller  v.  Chrisman, 
140  Cal.  440,  73  Pac.  1083,  74  Pac.  444, 
98  Am.  St.  Rep.  63   (1903),  affirmed  179 


296 


Water  and  Mineral  Cases. 


[Alaska 


17.  Same — Mere    Indications    Not   Sufficient. 

Mere  indications  of  mineral,  however  strong,  are  not  sufficient  to  answer  the 
requirement  of  the  statute  as  to  a  discovery. 

18.  Same — Indications  Considered. 

Indications  of  mineral  should  be  considered  as  to  whether  it  is  in  such  quantity 
end  under  such  circumstances  and  conditions  as  would  justify  a  man  of  ordinary 
prudence,  not  necessarily  a  skilled  miner,  in  expenditure  of  time  and  money  in 
development  of  the  property. 

19.  Same — Liberal  Construction  of  Statute. 

While  the  statute  requires  discovery  of  mineral  should  be  liberally  construed 
in  behalf  of  bona  fide  locators,  the  requirement  cannot  be  ignored,  and  discovery 
must  be  of  such  substantial  kind  and  character  as  would  justify  a  man  of  ordinary 
prudence  in  expenditure  of  time  and  money  to  develop  the  property. 

20.  Same — How    Determined. 

In  determining  the  sufficiency  of  discovery,  geological  and  natural  conditions  of 
the  ground  and  the  surrounding  country  should  be  considered. 

21.  Same — Right  of  Possession. 

A  locator  who  has  marked  boundaries  and  recorded  notice  and  entered  into  actual 
possession  for  the  purpose  of  making  discovery,  is  entitled  to  possession  so  long  as 
he  remains  in  actual  possession,  engaged  in  good  faith  in  labor  of  making  discovery. 

22.  Same — Temporary   Absence  from   Claim. 

Temporary  absence  from  claim  for  the  purpose  of  purchasing  provisions  or 
supplies,  with  intention  to  return,  is  not  an  abandonment. 


U.  S.  313,  25  Sup.  Ct.  468,  49  L.  Ed.  770 
(1905)  ;  Daggett  v.  Yreka  Min.  &  Mill. 
Co.,  149  Cal.  357,  86  Pac.  968   (1906). 

Colorado. — Wolfley  v.  Lebanon  Min. 
Co.,  4  Colo.  112  (1878);  Armstrong  v. 
Lower,  6  Colo.  393  (1882)  ;  McGinnis  v. 
Egbert,  8  Colo.  41,  5  Pac.  652  (1884); 
Johnson  v.  Young,  18  Colo.  625,  34  Pac. 
173  (1893);  Michael  v.  Mills,  22  Colo. 
439,  145  Pac.  429  (1896)  ;  Buck  v.  Jones, 
18  Colo.  App.  250,  70  Pac.  951,  22  Mor. 
Min.  R.  467    (1902). 

Dakota. — Golden  Terra  Min.  Co.  v. 
Mahler,  4  Pac.  Coast  L.  J.  405,  4  Mor. 
Min.  R.  390  (Dist.  Ct.  Dakota,  1879)  ; 
Golden  Terra  Min.  Co.  v.  Smith,  2  Dak. 
374,  11  N.  W.  98    (1881). 

Idaho. — Burke  v.  McDonald,  2  Idaho 
646,  2  Idaho  (Hasb.)  679,  33  Pac.  49 
(1890). 

Montana. — Foote  v.  National  Min.  Co., 
2  Mont.  402  (1876);  Hauswirth  v. 
Butcher,  4  Mont.  299,  1  Pac.  714 
( 1882 )  ;  Upton  v.  Larkin,  5  Mont.  600,  6 
Pac.  66  (1885);  McDonald  v.  Montana 
Wood  Co.,  14  Mont.  88,  35  Pac.  668,  43 
Am.    St.    Rep.    616     (1894);    Upton    v. 


Larkin,  7  Mont.  449,  17  Pac.  728,  15 
Mor.  Min.  R.  404  (1888);  Davidson  v. 
Bordeaux,  15  Mont.  245,  38  Pac.  1075 
(1895)  ;  Walsh  v.  Mueller,  16  Mont.  180, 
40  Pac.  292  (1895)  ;  McShane  v.  Kenkle, 
18  Mont.  208,  44  Pac.  979,  56  Am.  St. 
Rep.  579  (1896);  Sanders  v.  Noble,  22 
Mont.  110,  55  Pac.  1037  (1899);  Gem- 
mell  v.  Swain,  28  Mont.  331,  72  Pac. 
662,  98  Am.  St.  Rep.  570,  22  Mor.  Min. 
R  716    (1903). 

Nevada. — Gleeson  v.  Martin  White 
Min.  Co.,  13  Nev.  442,  9  Mor.  Min.  R. 
429  (1878)  ;  Overman  Silver  Min.  Co.  v. 
Corcoran,  15  Nev.  147    (1880). 

Oregon. — Patterson  v.  Tarbell,  26  Or. 
29,  37  Pac.  76  (1894). 

South  Dakota. — Marshall  v.  Harney 
Peak  Tin  Min.  Mill  &  Mfg.  Co.,  1  S.  D. 
350,  47  N.  W.  290  (1890);  Sands  v. 
Cruickshank,  15  S.  D.  142,  87  N.  W. 
589   (1901). 

Utah. — Muldoon  v.  Brown,  21  Utah 
121,  59  Pac.  720  (1899);  Copper  Globe 
Min.  Co.  v.  Allman,  23  Utah  410,  64 
Pac.  1019  (1901);  Reynolds  v.  Pascoe, 
24  Utah  219,  66  Pac.  1064  (1901)  ;  Lock- 


1905-1906] 


Charlton  v.  Kelly. 


297 


23.  Same — Possession — Residence    Not    Required. 

A    mining    claim    is    possessed    by    marking    boundaries,    recording,    and    making 
discovery  of  mineral,  etc.,  a  residence  on  the  claim  is  not  required. 

24.  Same — What  Constitutes  Possession. 

Merely  placing  tent,  tools,  and  small  supply  of  provisions  on  a  claim  does  not 
alone  constitute  possession  thereof. 

25.  Same — Casual  Visits. 

Mere  casual  visits  to  ground  and  leaving  thereon,  unused,  tents,  tools,  and  pro- 
visions, does  not  constitute  actual  possession. 


Action   in   ejectment    for   possession   of   mining   claim, 
defendants. 


Verdict   for 


For  plaintiffs — Heilig  &  Tozier. 
For  defendants — McGuire  &  Sullivan. 

WICKERSHAM,  District  Judge  (instructing  jury).  You  are  in- 
structed that  the  mining  claim  so  described  by  the  plaintiffs  is  covered 
by  a  portion  of  the  mining  claim  so  described  by  the  defendants,  and  that 
it  is  the  conflicting  area  which  is  in  dispute  in  this  case.     The  question, 


liart  v.  Farrell,  31  Utah  155,  86  Pac. 
1077   (1906). 

Canada  (Ontario). — Atty.  Gen.  of  On- 
tario v.  Hargrave,  8  O.  W.  R.  127,  10 
O./  W.  R.  319  (1907)  ;  Re.  McDermott  & 
Dreany,  Ont.  Min.   Com.  Cas.  4    (1906). 

Discovery  initiates  the  right  to  a  min- 
ing claim,  and  the  mere  posting  of  a  no- 
tice that  the  poster  has  located  a  mining 
claim,  made  without  a  discovery  or 
knowledge  of  existing  metal  there,  is  a 
mere  speculative  proceeding  and  confers 
no  right  whatever.  Erhardt  v.  Boaro, 
113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed. 
1113    (1885). 

A  mere  posting  of  a  notice  on  a  ridge 
of  rocks  cropping  out  of  the  earth  or  on 
other  ground,  that  the  poster  has  located 
thereon  a  mining  claim,  without  any 
discovery  or  knowledge  on  his  part  of 
the  existence  of  metal  there  or  in  its  im- 
mediate vicinity,  would  be  justly  treated 
as  a  mere  speculative  proceeding,  and 
would  not  itself  initiate  any  right.  There 
must  be  something  beyond  a  mere  guess 
on  the  part  of  the  miner  to  authorize 
-him  to  make  a  location  which  will  ex- 


clude others  from  the  ground,  such  as 
the  discovery  of  the  presence  of  precious 
metals  in  the  ground,  or  in  such  prox- 
imity to  the  location  as  to  justify  a  rea- 
sonable belief  in  their  existence.  Erhardt 
v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  564, 
28  L.  Ed.  1113  (1884)  ;  Lange  v.  Robin- 
son, 148  Fed.  799,  79  C.  C.  A.  1   (1906). 

A  valid  location  of  a  mining  claim 
must  be  based  upon  a  discovery,  and 
where  the  discovery  fails  the  whole  claim 
falls  with  it.  Gwillim  v.  Donnellan,  115 
U.  S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed.  348 
(1885). 

As  a  condition  precedent  to  the  appro- 
priation of  the  mineral  lands  of  the 
United  States  by  such  person  or  persona 
as  are  lawfully  entitled  to  make  such  ap- 
propriation, discovery  of  some  of  the 
precious  metals  therein  is  necessary. 
Moore  v.  Steelsmith,  1  Alaska  121 
(1901). 

While  the  statute  requiring  the  dis- 
covery of  mineral  as  one  of  the  essential 
conditions  of  a  valid  location  of  land  un- 
der the  mining  laws,  should  be  liberally 
construed  in  behalf  of  bona  fide  locators, 


298 


Watee  and  Mineral  Cases. 


[Alaska 


therefore,  for  you  to  determine  by  your  verdict  is :  Who  is  the  owner 
and  entitled  to  the  possession  of  the  property  in  dispute  in  this  action? 
You  are  instructed  that  all  valuable  mineral  deposits  in  lands  belonging 
to  the  United  States  in  Alaska  are  free  and  open  to  exploration  and 
purchase  by  citizens  of  the  United  States  under  the  regulations  prescribed 
by  law.  The  regulations  that  have  been  prescribed  by  law  in  order 
to  make  a  valid  location  of  a  mining  claim  in  the  territory  of  Alaska 
are:  First.  A  discovery  of  mineral  upon  or  within  the  ground  to  be 
located.  Second.  A  marking  of  the  boundaries  of  the  property  upon  the 
ground,  so  that  the  same  can  be  readily  traced.  Third.  The  recording 
of  a  notice  of  location  within  ninety  days  from  the  date  of  the  discovery 
of  the  claim  described  in  the  notice  with  the  recorder  of  the  recording 
district  in  which  the  said  property  is  located.  The  order  in  which  these 
acts  are  to  be  done  is  immaterial,  provided  they  all  shall  have  been 
completed  before  the  rights  of  others  have  intervened.  It  is  not  essen- 
tial that  the  discovery  shall  precede  or  co-exist  with  the  demarkation 
of  the  boundaries  and  the  recording  of  the  notice  of  location.  The  dis- 
covery may  be  made  subsequent,  and  when  made  operates  to  perfect  the 
location  against  the  whole  world,  save  those  whose  bona  fide  rights  have 
intervened.    But  you  must  bear  in  mind  that  all  three  of  these  acts  must 


the  statutory  requirement  that  discovery 
shall  be  made  should  not  be  ignored,  and 
the  discovery  must  be  of  such  a  substan- 
tial kind  and  character  as  to  convince  the 
jury  by  a  fair  preponderance  of  the  evi- 
dence that  it  would  justify  a  man  of  or- 
dinary prudence,  not  necessarily  a  skill- 
ed miner,  in  the  expenditure  of  his  time 
and  money  in  the  development  of  the 
property.  Charlton  v.  Kelly,  principal 
case. 

There  can  be  no  valid  location  without 
an  actual  discovery  of  mineral.  Tuol- 
umne Consol.  Min.  Co.  v.  Maier,  134  Cal. 
583,  66  Pac.  863   (1901). 

A  valid  location  must  be  based  upon 
a  discovery  of  a  lode  within  its  limits. 
The  lode  is  the  principal  thing  granted 
by  the  government,  the  surface  ground 
being  merely  an  incident.  Wolfley  v. 
Lebanon  Min.  Co.  of  New  York,  4  Colo. 
112   (1878). 

The  locator  of  a  mining  claim  has  no 
title  thereto  until  discovery  is  made,  and 
a  deed  thereof  before  discovery,  in  con- 
sideration of  stock  in  a  corporation,  is 


void  and  without  consideration,  as  it 
conveys  no  title.  Buck  v.  Jones,  18  Colo. 
App.  250,  70  Pac.  951,  22  Mor.  Min.  R. 
467   (1902). 

The  following  instruction,  "To  make  a 
valid  location  of  a  lode  mining  claim, 
there  must  be  a  discovery  within  the 
limits  of  the  claim  located  of  a  vein  or 
crevice  of  quartz  of  ore  with  at  least  one 
well-defined  wall  on  a  lead,  lode  or  ledge 
of  rock  in  place,  containing  gold,  silver 
or  other  mineral  deposits,"  held  proper, 
when  considered  in  connection  with  other 
instructions  defining  and  limiting  what 
is  meant  by  a  discovery.  Upton  v. 
Larkin,  7  Mont.  449,  17  Pac.  728,  15 
Mor.  Min.  R,  404   (1888). 

A  patent  cannot  be  obtained  upon  dis- 
covery after  application  therefor.  Up- 
ton v.  Larkin,  7  Mont.  449,  17  Pac.  728, 
15.  Mor.  Min.  R.  404  (1888). 

Until  discovery  is  made  no  right  of 
possession  to  any  definite  portion  of  the 
public  mineral  lands  can  ever  be  ini- 
tiated. Until  that  is  done  the  prospec- 
tor's rights  are  confined  to  the  ground  in 


1905-1906] 


Chaelton  v.  Kelly. 


299 


be  completed  before  sufficient  title  passes  from  the  government  of  the 
United  States  to  the  claimant  of  the  ground  sufficient  to  maintain  an 
action  in  ejectment  such  as  this  is,  except  that  I  instruct  you  that 
whenever  a  claimant  of  mineral  ground  in  Alaska  shall  have  marked 
the  location  thereof  by  stakes  or  other  permanent  monuments,  so  that 
the  boundaries  thereof  can  be  readily  traced,  and  shall  have  filed  with 
the  recorder  a  notice  of  the  location  within  ninety  days  from  the  date 
of  the  discovery  of  the  claim,  and  shall  be  in  the  actual  possession  of  the 
ground,  attempting  in  good  faith  to  make  a  discovery  thereon,  he  is  as 
much  entitled  to  the  protection  of  the  law  and  to  maintain  an  action 
of  ejectment,  if  ousted,  as  if  he  had  actually  made  a  discovery. 

i.  Your  first  inquiry,  then  will  be:  Was  the  location  so  asserted 
by  the  plaintiffs  in  this  action  so  definitely  marked  upon  the  ground 
and  in  such  a  manner  that  the  boundaries  could  be  readily  traced  prior 
to  the  intervention  of  defendants'  rights?     This  is  a  question  for  you 


his  actual  possession.  Gemmell  v.  Swain, 
28  Mont.  331,  72  Pac.  662,  98  Am.  St. 
Rep.  570,  22  Mor.  Min.  R.  716  (1903). 
Under  the  law  of  congress  no  Talid  lo- 
cation of  a  mining  claim  can  be  made 
until  a  vein  or  deposit  of  gold,  silver  or 
metalliferous  ore  or  rock  in  place  has 
been  discovered.  Overman  Silver  Min. 
Co.  v.  Corcoran,  15  Nev.  147   (1880). 

The  facts  set  forth  in  the  affidavit  of 
discovery  must  be  true;  that  is,  there 
must  have  been  an  actual  discovery  of 
valuable  mineral.  Attorney  General  of 
Ontario  v.  Hargrave,  8  O.  W.  R.  127,  10 
O.  W.  E.  319    (1907). 

The  mere  staking  out  of  a  mining 
claim  without  a  discovery  of  valuable 
mineral  is  void,  and  confers  no  rights. 
In  re  McDermott  &  Dreany,  Ont.  Min. 
Com.  Cas.  4   (1906). 

The  burden  of  proof  to  show  an  actual 
discovery  is  upon  the  defendant  in  an  ac- 
tion to  determine  an  adverse  claim 
where  the  defendant's  location  rested  on 
an  alleged  location  prior  to  that  of  the 
plaintiff.  Sands  v.  Cruickshank,  15  S. 
D.  142,  87  N.  W.  589   (1901). 

B.      Presumptions. 

Recording  the  notice  and  marking  the 
boundaries  upon  the  ground  is  not  suffi- 
cient to  authorize  the  court  to  presume  a 


discovery.  In  order  to  defeat  a  subse- 
quent location,  a  discovery  must  be 
shown.  Smith  v.  Newell,  86  Fed.  56 
(1898)  ;  Bnlette  v.  Dodge,  2  Alaska  427 
(1905). 

Discovery  will  be  presumed  after  a 
lapse  of  several  years,  especially  in 
favor  of  one  holding  by  purchase  from 
the  original  locator.  Harris  v.  Equator 
Min.  Co.,  3  McC.  14,  8  Fed.  863  (1881)  ; 
McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac. 
652  (1884). 

C.      Where    Boundaries   Are   Ex- 
tended. 

Where  the  boundaries  of  a  claim  are 
extended  by  an  amendment  of  the  loca- 
tion notice,  etc.,  it  is  not  necessary  that 
a  new  discovery  be  made  upon  that  por- 
tion so  added  to  the  claim.  Tonopah  & 
Salt  Lake  Min.  Co.  v.  Tonopah  Min.  Co., 
125  Fed.  389    (1903). 

As  to  amending  notice  of  location  and 
effect  tbereof,  see  note  to  Giberson  v. 
Tuolumne  Copper  Co.,  vol.  2,  this  series. 

D.      Mexican  Law. 

Under  the  Mexican  Law,  discovery  of 
a  mine  was  necessary,  but  the  mere  fact 
of  discovery  did  not  vest  title  in  the  dis- 
coverer.    To  obtain  title  he  must  have 


300 


Water  and  Mineral  Cases. 


[Alaska 


to  determine  under  all  the  circumstances  in  the  case,  and  depends  some- 
what upon  the  conformation  of  the  ground  and  the  surrounding  condi- 
tions. What  may  be  sufficient  in  the  case  of  a  comparatively  level  and 
bare  surface  might  not  necessarily  meet  the  requirements  of  the  law 
in  a  hilly  or  brushy  country. 

You  are  instructed  that  a  claim  may  be  marked  upon  the  ground 
by  stakes  or  other  permanent  monuments,  but  you  are  instructed  that 
the  law  requires  a  claim  to  be  so  distinctly  marked  upon  the  ground 
that  its  boundaries  can  be  readily  traced.  The  requirements  of  the 
statute  in  this  respect  are  not  necessarily  fulfilled  by  merely  setting 
stakes  at  each  of  the  corners  of  the  claim  and  at  the  center  of  the  end 
line,  unless  the  topography  of  the  ground  and  the  surrounding  condi- 
tions are  such  that  a  person  accustomed  to  tracing  lines  of  mining  claims 
can,  after  reading  a  description  of  the  claim  in  the  posted  or  recorded 
notice  of  the  location  or  upon  the  stakes,  by  a  reasonable  and  bona  fide 


conformed  to  the  conditions  of  the  min- 
ing ordinance  as  to  the  presentation  of 
written  statement  of  registry  of  the  mine 
and  the  other  steps  provided  by  the  or- 
dinance to  be  taken.  United  States  v. 
Castillero,  67  U.  S.  (2  Black)  1,  17  L. 
Ed.  360    (1862). 

As  to  discovery  being  essential  to  lo- 
cation of  placer  claim  see  the  next  para- 
graph of  this  note. 

III.      Essential  to   Placer  Location. 

A.      In   General. 

An  actual  discovery  of  mineral  is  as 
essential  to  a  valid  placer  location  as  it 
is  to  a  lode  location. 

United  States. — Jackson  v.  Roby,  109 
U.  S.  440,  3  Sup.  Ct.  301,  27  L.  Ed.  990 
(1883);  Davis  v.  Webbold,  139  U.  S. 
•509,  11  Sup.  Ct.  628,  35  L.  Ed.  238 
(1890);  desman  v.  Miller,  197  U.  S. 
373,    25    Sup.    Ct.    468,    49    L.    Ed.    770 

(1905)  ;  Nevada  Sierra  Oil  Co.  v.  Home 
Oil  Co.,  97  Fed.  681  (1899);  Nevada 
Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed. 
673  (1899)  ;  Olive  L.  &  Dev.  Co.  v.  Olm- 
stead,  103  Fed.  568,  20  Mor.  Min.  R. 
700  (1900);  Steele  v.  Tanana  Mines  R. 
Co.,    148   Fed.    678,    78    C.   C.    A.    412 

( 1906 )  ;  Dughi  v.  Harkins,  2  Land  Dec. 
721  (1883);  Lincoln  v.  Placer,  7  Land 
Dec.  81   (18S8)  ;  Ferrell  v.  Hoge,  18  Land 


Dec.  81,  19  Land  Dec.  568  (1894); 
Southern  Pacific  R.  Co.  v.  Griffin,  20 
Land  Dec.  485  (1895)  ;  Ehodes  v.  Treas., 
21  Land  Dec.  502  (1895)  ;  Reins  v.  Mur- 
ray, 22  Land  Dec.  409  (1896);  In  re 
Louis  Min.  Co.,  22  Land  Dec.  663 
(1896);  In  re  Union  Oil  Co.,  23  Land 
Dec.  222,  on  review  25  Land  Dec.  351 
(1896);  In  re  Union  Oil  Co.,  25  Land. 
Dec.  351  (1897);  Reins  v.  Raunheim, 
28  Land  Dec.  526   (1899). 

Alaska. — Barnette  v.  Freeman,  2 
Alaska  286    (1904). 

California. — Miller  v.  Chrisman,  140 
Cal.  440,  73  Vac.  1083,  74  Pac.  448,  98 
Am.  St.  Rep.  63  (1903),  affirmed  197 
U.  S.  313,  25  Sup.  Ct.  468,  49  L.  Ed.  770 
(1905)  ;  Weed  v.  Snook,  144  Cal.  439,  79 
Pac.  1023  (1904);  New  England  & 
Coalinga  Oil  Co.  v.  Congdon,  152  Cal. 
211,  92  Pac.    180    (1907). 

Montana. — Moxon  v.  Wilkinson,  2 
Mont.  421  (1876);  McDonald  v.  Mon- 
tana Wood  Co.,  14  Mont.  88,  35  Pac. 
668,  43  Am.  St.  Rep.  616  (1894);  Okl. 
Bay  v.  Oklahoma  Southern  Gas,  Oil  & 
Min.  Co.,  13  Okl.  425,  73  Pac.  93G 
(1903). 

Although  in  some  instances  courts 
have  questioned  the  necessity  of  an  ac- 
tual discovery  of  mineral  upon  gold 
placer   ground,   it   is   established   by   the 


1905-1906] 


Charlton  v.  Kelly. 


301 


effort  to  do  so,  find  all  of  the  stakes,  and  thereby  readily  trace  the 
boundaries.     Where  the  country  is  broken  or  the  view  from  one  stake 
or  monument  to  another  is  obstructed  by  intervening  timber  or  brush, 
it  may  be  necessary  to  blaze  trees  along  the  line,  or  cut  away  the  brush, 
or  set  more  stakes  at  such  distances  that  they  may  be  seen  from  one 
to  the  other,  in  a  way  to  indicate  the  lines,  so  that  the  boundaries  can 
be  readily  traced.     But  it  is  not  for  the  court  to  say  what  is  a  suffi- 
cient marking  of  the  boundaries.     It  is  your  duty  to  determine  from 
all  the  evidence  in  the  case  and  from  the  topography  of  the  ground  in 
question  whether  or  not  a  sufficient  marking  of  the  boundaries  of  the 
claim  by  the  plaintiffs  was  made  so  that  the   same  could  be  readily 
traced  by  a  person  making  a  reasonable  effort  to  do  so.     If  you  find 
from  the  evidence  in  this  case  that  this  location  was  so  definitely  marked 
on  the  ground  by  the  plaintiffs  or  their  agents  that  its  boundaries  could 
be  readily  traced,  then  I  instruct  you  that  the  plaintiffs  have  complied 


decided  weight  of  authority  that  appro- 
priate discovery  is  as  necessary  to  the 
location  of  a  placer  claim  as  to  the  lo- 
cation of  a  lode  claim.  Steele  v.  Tanana 
Mines  R.  Co.,  148  Fed.  678,  78  C.  C.  A. 
412    (1906). 

A  placer  mining  claim  is  not  perfected 
until  mineral  is  discovered.  Barnette  v. 
Freeman,  2  Aaska,  286    (1904). 

As  to  placer  claims,  there  is  no  pro- 
vision in  the  acts  of  congress  requiring 
an  actual  discovery  of  valuable  mineral 
before  a  valid  location  can  be  made. 
Gregory  v.  Pershbaker,  73  Cal.  109,  14 
Pac.  401  (1887),  (overruled;  see  next 
paragraph ) . 

The  holding  that  so  discovery  was  nec- 
essary in  order  to  make  a  valid  location 
of  a  placer  claim  contained  in  Gregory 
v.  Pershbaker,  73  Cal.  Ill,  14  Pac.  401, 
was  not  necessary  to  the  decision,  and 
the  rule  is  the  other  way.  New  England 
&  Coalinga  Oil  Co.  v.  Congdon,  152  Cal. 
211,  92  Pac.  ISO   (1907). 

A  discovery  of  mineral  within  the 
limits  of  the  claim  is  as  essential  to  the 
validity  of  the  location  in  the  case  of 
placer  claims  as  it  is  in  lode  locations. 
New  England  &  Coalinga  Oil  Co.  v. 
Congdon,  152  Cal.  211,  92  Pac.  180 
(1907). 


As  to  discovery  being  essential  to  lode 
mining  location  see  paragraph  II  of  this 
note. 

B.  Oil  Lands. 
A  prior  discovery  is  necessary  to  a  lo- 
cation of  petroleum  lands,  they  being 
located  under  the  mineral  laws  applica- 
ble to  placer  locations.  Nevada  Sierra 
Oil  Co.  v.  Miller,  97  Fed.  681    (1899).^ 

Location  of  an  oil  placer  mining  claim 
upon  which  no  discovery  of  oil  has  been 
made,  vests  the  locators  with  no  rights 
in  the  land  as  against  one  subsequently 
acquiring  title  thereto  from  the  govern- 
ment prior  to  any  such  discovery.  Olive 
Land  &  Development  Co.  v.  Olmstead,  103 
Fed.  568,  20  Mor.  Min.  R.  700  (1900). 
The  location  of  oil  land  is  governed 
by  the  mineral  laws  applicable  to  placer 
locations,  and  therefore,  there  can  be  no 
valid  location  of  oil  land  until  a  dis- 
covery is  made.  Miller  v.  Chrisman,  140 
Cal.  440,  73  Pac.  1083,  74  Pac.  440,  98 
Am.  St.  Rep.  63  (1903),  affirmed  Chris- 
man  v.  Miller,  197  U.  S.  373,  25  Sup. 
Ct.  468,  49  L.  Ed.  770   (1905). 

Before  the  location  of  a  claim  contain- 
ing petroleum  or  other  mineral  oils  can 
be°made,  there  must  be  a  discovery  of  a 
deposit    from    which    the    oil    is    drawn. 


302 


Water  and  Mineral  Cases. 


[Alaska 


with  the  requirements  of  the  law;  if  not,  then  I  instruct  you  that  they 
have  failed  in  one  of  the  essentials  of  a  valid  placer  mining  location, 
and  that  your  verdict  must  be  for  the  defendants. 

2.  The  law  requires,  in  addition  to  marking  the  boundaries,  that  the 
locator  shall  file  a  notice  of  the  location  of  his  mining  claim  for  record 
within  ninety  days  from  the  date  of  the  discovery  of  the  claim  de- 
scribed in  the  notice  with  the  commissioner  and  ex-officio  recorder  in 
and  for  the  recording  district  in  which  the  claim  is  located.  And 
where  a  notice  of  location  is  required  to  be  recorded,  as  it  is  here,  it 
shall  contain  the  name  or  names  of  the  locators,  the  date  of  the  loca- 
tion, and  such  a  description  of  the  claim,  by  reference  to  some  natural 
objects  or  permanent  monument  as  will  identify  the  claim.  You  are  in- 
structed that  stakes  set  at  each  corner  of  the  claim  with  a  center  end 
stake,  together  with  some  reference  to  other  natural  objects  or  permanent 
monuments  in  that  locality,  such  as  another  well-known  claim  or  group 
of  claims,  is  a  sufficient  compliance  with  this  requirement  of  the  statute. 


Bay  v.  Oklahoma  Southern  Gas,  Oil  & 
Min.  Co.,  13  Okla.  425,  73  Pac.  936 
(1903). 

As  to  the  petroleum  and  natural  gas 
being  minerals  and  subject  to  location 
as    placer    mining    claims,    see    note    to 

Whiting  v.  Straup,   p.  ,  vol.  2,  this 

series. 

C.      Association  Claims. 

A  placer  location,  if  made  by  an  asso- 
ciation of  persons,  may  include  as  much 
as  160  acres.  It  is,  nevertheless,  a  single 
location  and  as  such  only  a  single  dis- 
covery is  by  the  statute  required  to  sup- 
port it.  Miller  v.  Chrisman,  140  Cal. 
440,  73  Pac.  1083,  74  Pac.  440,  98  Am. 
St.  Rep.  63  (1903),  affirmed  197  U.  S. 
373,  25  Sup.  Ct.  468,  49  L.  Ed.  770. 
(1905). 

The  rule  is  now  that  a  placer  location 
made  by  an  association  of  persons  may 
include  160  acres ;  that  it  is  but  a  single 
location,  and  that  one  discovery  of  min- 
erals is  required  preceding  its  location. 
In  re  Union  Oil  Co.,  25  Land  Dec.  351 
(1897),  29  Land  Dec.  12  (1899)  ;  Reims 
v.  Raumheim,  28  Land  Dec.  526  (1899)  ; 
McDonald  v.  Montana  Wood  Co.,  14 
Mont.  88,  35  Pac.  668,  43  Am.  St.  Rep. 
«16   (1894). 


But  one  discovery  is  required  upon 
which  to  base  a  placer  location,  whether 
it  be  one  of  twenty  acres  by  an  individ- 
ual, or  of  160  acres  or  less  by  an  asso- 
ciation. Farrell  v.  Hoge,  27  Land  Dec. 
129,  29  Land  Dec.  12  (1899). 

Where  an  association  claim  of  160 
acres  is  made  by  eight  persons  it  is  not 
necessary  that  a  discovery  be  made  upon 
each  twenty-acre  tract  thereof.  McDon- 
ald v.  Montana  Wood  Co.,  14  Mont.  88, 
35  Pac.  668,  43  Am.  St.  Rep.  616  (1894). 

Where  discovery  is  made  upon  a  loca- 
tion of  80  acres  of  oil  land  and  there- 
after 80  acres  are  added  thereto  and  a 
location  of  160  acres  made,  the  discovery 
upon  the  80  acres  first  located  is  not 
sufficient  basis  for  a  location  of  the 
claim  of  160  acres.  Weed  v.  Snook,  144 
Cal.  439,  77  Pac.  1023   (1904). 

IV.      Object  and  Construction  of  the 
Law. 

The  object  of  the  law  is  to  prevent 
fraud  upon  the  government  by  persons 
attempting  to  acquire  patent  to  lands  not 
mineral  in  character.  Shoshone  Min. 
Co.  v.  Rutter,  87  Fed.  801,  31  C.  C.  A. 
223,  59  U.  S.  App.  538  (1898);  Lange 
v.  Robinson,  148  Fed.  799    (1906)  j   San- 


1905-1906] 


Chaklton  v.  Kelly. 


303 


The  law  does  not  require  absolute  technical  strictness  in  the  preparation 
of  a  notice  of  location.  The  pioneer  prospector,  as  a  rule,  is  neither  a 
lawyer  nor  a  surveyor.  Neither  mathematical  precision  as  to  measure- 
ments nor  technical  accuracy  of  expression  in  the  preparation  of  the 
notice  is  either  contemplated  or  required.  The  object  of  the  notice  of 
location  is  to  prevent  the  swinging  of  the  claim  or  the  changing  of  the 
boundaries,  and  to  guide  the  subsequent  locator,  and  to  afford  him 
information  as  to  the  extent  of  the  claim  of  the  prior  locator.  Whatever 
does  this  thoroughly  and  reasonably  should  be  held  to  be  a  good  notice. 
And  in  this  case,  if  you  shall  find  from  the  evidence  that  the  plaintiffs 
did  within  ninety  days  from  the  date  of  the  discovery  of  their  claim, 
file'  for  record  in  the  office  of  the  recorder  in  the  precinct  where  the 
claim  was  situated  a  notice  of  location  which  did  contain  the  name  or 
names  of  the  locators,  the  date  of  the  location,  and  such  a  description 
of  the  claim  located,  by  reference  to  some  natural  object  or  permanent 


ders  v.  Noble,  22  Mont.  110,  55  Pac.  1037 
(1899). 

The  object  of  the  law  in  requiring  the 
discovery  to  precede  location  is  to  insure 
good  faith  upon  the  part  of  the  mineral 
locator,  and  to  prevent  frauds  upon  the 
government  by  persons  attempting  to  ac- 
quire land  not  mineral  in  its  character. 
Lange  v.  Robinson,  148  Fed.  799,  C.  C. 
A.  1   (1906). 

When  the  controversy  is  between  two 
mineral  claimants  the  rule  respecting  the 
sufficiency  of  a  discovery  of  mineral  is 
more  liberal  than  when  it  is  between  a 
mineral  claimant  and  one  seeking  to 
make  an  agricultural  or  other  entry 
under  the  land  laws.  The  reason  for  this 
distinction  is  said  to  be  that  when  land 
is  sought  to  be  taken  out  of  the  category 
of  agricultural  lands,  the  evidence  of  its 
mineral  character  should  be  reasonably 
clear,  while  in  respect  to  a  controversy 
between  rival  claimants  to  mineral  land, 
the  question  is  simply  which  is  entitled 
to  priority.  Steele  v.  Tanana  Mines  R. 
Co.,  148  Fed.  678,  78  C.  C.  A.  412 
(1906). 

It  is  the  object  and  policy  of  the  law 
to  encourage  the  prospector  and  miner  in 
their  efforts  to  discover  the  hidden  treas- 
ures of  the  mountains,  and  therefore  as 
between    conflicting    lode    claimants    the 


law  is  liberally  construed  in  favor  of  the 
senior  location.  Grand  Central  Min.  Co. 
v.  Mammoth  Min.  Co.,  29  Utah  490,  83 
Pac.  648   (1895). 

The  object  of  requiring  a  discovery  as 
the  basis  of  mining  title,  is  to  prevent 
the  blanketing  of  property  for  specu- 
lative purposes,  which  is  against  the 
policy  of  the  law,  it  intending  to  re- 
serve the  land  as  a  reward  to  the  man 
who  actually  makes  a  discovery  of  min- 
erals the  development  of  which  may  be 
beneficial  to  the  mining  extents  of  the 
country.  In  re  Lamothe,  Ont.  Min.  Com. 
Cas.  167    (1908). 

V.      Order   of   Time    of    Performance 
of  Acts  of  Location. 

A.     Order   Immaterial. 

Where  the  discovery  is  made  subse- 
quent to  the  marking  of  boundaries  and 
recording  of  notices,  the  location  is  valid 
from  the  date  of  the  discovery,  provided 
no  rights  of  third  parties  have  inter- 
vened. 

United  States.— Zollars  Consol.  Min. 
Co.  v.  Evans,  2  McC.  39,  5  Fed.  172 
(1880);  Crossman  v.  Pendery,  2  McC. 
139,  8  Fed.  693  (1881)  ;  Perigo  v.  Erwin, 
85  Fed.  904  (1898)  ;  Erwin  v.  Perigo,  93 
Fed.     608,     35     C.    C.     A.    482    (1899), 


304 


Water  and  Mineral  Cases. 


[Alaska 


monument,  as  would  and  did  identify  the  claim,  then  you  shall  find  that 
question  in  favor  of  the  plaintiffs,  otherwise  against  them. 

3.  A  third  requirement  is  that  the  plaintiffs  shall  make  a  discovery 
of  mineral  in  or  upon  the  claim.  If  you  shall  find  from  the  evidence 
that  plaintiffs  marked  the  boundaries  of  their  claim  so  that  the  same 
could  be  readily  traced,  and  filed  a  notice  of  location  thereof  within 
ninety  days  from  the  date  of  the  discovery  of  their  claim,  which  notice 
contained  the  name  or  names  of  the  locators,  the  date  of  the  location, 
and  such  a  description  of  the  claim,  located  by  reference  to  some  natural 
object  or  permanent  monument,  as  would  identify  the  claim,  then  you 
should  consider  the  question  of  discovery.  You  are  instructed  that  a. 
mere  marking  of  the  boundaries  of  the  claim  and  the  posting  and  re- 
cording of  a  notice  of  location,  alone  and  of  themselves,  give  no  title 
to  the  locator,  nor  do  they  constitute  possession.     One  may  mark  the 


affirming  85  Fed.  904  (1898);  Nevada 
Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed. 
673,  20  Mor.  Min.  R.  283  (1899)  ;  Wal- 
ton v.  Wild  Goose  Min.  &  T.  Co.,  123 
Fed.  209,  60  C.  C.  A.  155  (1903)  ;  Uinta 
Tunnel  Min.  &  T.  Co.  v.  Ajax  Gold  Min- 
ing Co.,  141  Fed.  563,  73  C.  C.  A.  35 
(1905);  Brannagan  v.  Dulaney,  2  Land 
Dec.  744  (1884)  ;  Reins  v.  Raunheim,  28 
Land   Dec.    526    (1899). 

Alaska. — Heman  v.  Griffith,  1  Alaska 
264  (1901);  Barnette  v.  Freeman,  2 
Alaska  286    (1904). 

California. — Miller  v.  Chrisman,  140 
Cal.  440,  73  Pac.  1083,  74  Pac.  444,  98 
Am.  St.  Rep.  63  (1903);  New  England 
&  C.  Oil  Co.  v.  Congdon,  152  Cal.  211, 
92  Pac.  180  (1907). 

Colorado. — Strepey  v.  Stark,  7  Colo. 
614,  5  Pac.  Ill  (1884);  McGinnis  v. 
Egbert,  8  Colo.  41,  5  Pac.  652  (1884); 
Healey  v.  Rupp,  37  Colo.  25,  86  Pac. 
1015   (1906). 

Dakota. — Golden  Terra  Min.  Co.  v. 
Mahler,  4  Pac.  Coast  L.  J.  405,  4  Mor. 
Min.  R.  390  (Dist.  Ct.  Dakota,  1879)  ; 
Golden  Terra  Min.  Co.  v.  Smith,  2  Dak. 
374,  11  N.  W.  97  (1881). 

Nevada. — Patchen  v.  Keeley,  19  Nev. 
404,  14  Pac.  347    (1887). 

Oregon. — Sharkey  v.  Candiani,  48  Or. 
112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791 
(1906). 


South  Dakota. — MePherson  v.  Julius, 
17  S.  D.  98,  95  N.  W.  428   (1903). 

Washington. — Protective  Min.  Co.  v. 
Forest  City  Min.  Co.,  51  Wash.  643,  99 
Pac.    1033     (1909). 

Where  no  discovery  has  been  made  at 
the  time  of  marking  the  boundaries  on 
the  ground  and  filing  notice  of  location, 
but  is  subsequently  made  before  the 
rights  of  third  parties  have  intervened, 
the  location  is  valid  from  the  date  of 
the  discovery.  Creede  &  Cripple  Creek 
Min.  &  Mill.  Co.  v.  Uinta  Tunnel  Min.  & 
Transp.  Co.,  196  U.  S.  337,  25  Sup.  Ct. 
266.  49  L.  Ed.  501   (1904). 

The  provisions  of  U.  S.  Rev.  Stat., 
section  2320,  that  "no  location  of  a  min- 
ing claim  shall  be  made  until  the  dis- 
covery of  the  vein  or  lode  within  the 
limits  of  the  claim  located,"  construed 
to  mean  nothing  more  than  that  no 
location  shall  be  considered  complete  un- 
til there  has  been  a  discovery.  Creede 
&  Cripple  Creek  Min.  &  Mill.  Co.  v. 
Uinta  Tunnel  Min.  &  Transp.  Co.,  196 
U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501 
(1904). 

No  rights  can  be  acquired  by  location 
made  before  a  discovery,  but  where  dis- 
covery is  made  after  location  and  before 
any  rights  of  third  parties  have  inter- 
vened, the  defect  is  cured,  and  the  lo- 
cation   becomes    valid.     North    Noonday 


1905-1906] 


Charlton  v.  Kelly, 


305 


boundaries  of  a  claim  and  record  the  notice  of  location  thereof,  but  to 
make  a  complete  valid  placer  mining  location  he  must  first  make  a  dis- 
covery of  mineral  thereon.  This,  then,  brings  us  to  the  third  question 
in  this  case,  to-wit,  that  of  discovery  of  mineral  within  the  exterior 
boundaries  of  the  claim.  What  is  discovery?  What  finding  of  mineral 
on  a  mining  claim  is  sufficient  to  comply  with  the  law  which  requires 
"that  no  location  of  a  mining  claim  shall  be  made  until  discovery"  of 
mineral  within  the  limits  of  the  claim  located?  What  is  necessary  to 
constitute  a  discovery  of  mineral  within  the  limits  of  the  claim  located? 
What  is  necessary  to  constitute  a  discovery  of  mineral  is  not  prescribed 
by  statute,  but  the  Supreme  Court  of  the  United  States  in  a  recent 
case  has  laid  down  the  rule  which  must  govern  this  court  and  this  jury 
in  answering  the  question,  what  is  a  discovery? 

"Where  mineral  has  been  found,  and  the  evidence  is  of  such  a  char- 
acter that  a  person  of  ordinary  prudence  would  be  justified  in  the  fur- 
ther expenditure  of  his  labor  and  means,  with  a  reasonable  prospect  of 


Min.  Co.  v.  Orient  Min.  Co.,  6  Sawy. 
299,  1  Fed.  522,  9  Mor.  Min.  R.  529 
(1880)  ;  Jupiter  Min.  Co.  v.  Bodie  Consl. 
Min.  Co.,  7  Sawy.  96,  11  Fed.  666,  4  Mor. 
Min.  R.  411  (1881). 

A  discovery  subsequent  to  the  mark- 
ing of  boundaries,  etc.,  validates  the 
claim  from  the  date  of  the  discovery.  A 
location  is  in  no  case  complete  until  a 
discovery.  Uinta  Tunnel  Min.  &  Transp. 
Co.  v.  Creede  &  Cripple  Creek  Min.  & 
Mill.  Co.,  119  Fed.  164,  57  C.  C.  A.  200 
(1902). 

A  discovery  made  after  the  posting  of 
notice  and  marking  of  boundaries,  does 
not  relate  back  to  the  time  of  those  acts, 
but  completes  and  validates  the  location. 
Thus  where  the  prospector  noticed  and 
staked  his  claim,  but  left  before  making 
discovery,  he  can  claim  no  rights  as 
against  one  who  before  his  return  had 
made  a  valid  discovery  and  location  upon 
the  ground.  Johnson  v.  White,  160  Fed. 
901    (1908). 

Although  prior  to  location  no  dis- 
covery of  mineral  was  made  within  the 
ground  claimed,  upon  a  subsequent  dis- 
covery prior  to  application  for  patent 
the  location  became  good  and  sufficient 
in  the  absence  of  any  adverse  rights.  In 
re  Mitchell,  2  Land  Dec.  752  (1884). 
W.    &    M—  20 


It  is  a  general  rule  in  mining  locations 
that  while  discovery,  marking  the  boun- 
daries, and  recording  are  prerequisite 
to  a  valid  mining  location,  it  is  imma- 
terial in  what  order  they  are  performed 
so  that  each  is  performed  before  other 
rights  intervene.  Thompson  v.  Burk,  2 
Alaska    249    (1904). 

Discovery  of  mineral,  marking  the 
boundaries  on  the  surface,  and  record- 
ing of  notice  are  essential  to  the  validity 
of  a  mining  location.  It  is  immaterial 
in  what  order  these  acts  are  done,  pro- 
vided they  are  all  performed  before  other 
rights  intervene.  Redden  v.  Harlan,  2 
Alaska    402    (1905). 

If  discovery  is  made  prior  to  the 
marking  of  boundaries  and  recording  of 
notice,  these  acts  relate  back  to  the  time 
of  discovery,  but  if  discovery  is  the, last 
act  of  the  location  it  gives  life  and  valid- 
ity of  the  location  and  it  is  effective  only 
from  the  date  of  the  discovery.  Redden 
v.  Harlan,  2  Alaska    402   (1905). 

The  three  essentials  of  a  valid  mining 
location  are  discovery  of  mineral,  mark- 
ing the  boundaries  on  the  surface  of  the 
ground,  and  a  notice  of  location  describ- 
ing the  claim  with  reasonable  certainty, 
posted  and  recorded,  as  required  by  the 
statute  and  local  regulations,  and  until 


306 


Water  and  Mineral  Cases. 


[Alaska 


success,  in  developing  a  valuable  mine,  the  requirements  of  the  statute 
have  been  met.  To  hold  otherwise  would  tend  to  make  of  little  avail, 
if  not  entirely  nugatory,  that  provision  of  the  law  whereby  all  valuable 
mineral  deposits  in  land  belonging  to  the  United  States  are  declared  to  be 
free  and  open  to  exploration  and  purchase." 

Some  courts  have  held  that  a  mere  willingness  on  the  part  of  the 
locator  to  further  expend  his  labor  and  means  was  a  fair  criterion, 
but  it  would  seem  that  the  question  should  not  be  left  to  the  arbitrary 
will  of  the  locator. 

"Willingness,  unless  evidenced  by  actual  exploitation,  would  be  a  mere 
mental  state,  which  could  not  be  satisfactorily  proved.  The  facts  which 
are  within  the  observation  of  the  discoverer,  and  which  induce  him  to 
locate,  should  be  such  as  would  justify  a  man  of  ordinary  prudence, 
not  necessarily  a  skilled  miner,  in  the  expenditure  of  his  time  and  money 
in  the  development  of  the  property." 

And  in  the  case  from  which  I  am  now  quoting  (Chrisman  v.  Miller, 
197  U.  S.  313,  25  Sup.  Ct.  468,  49  L.  Ed.  770),  the  court  further  said: 


all  of  these  three  acts  are  performed 
there  is  no  valid  location.  The  mere 
marking  of  boundaries  and  recording 
without  a  discovery  of  mineral  is  a  mere 
speculative  proceeding,  and  confers  no 
right  or  title.  The  order  of  the  perform- 
ance of  the  acts  is  immaterial,  provided 
that  no  rights  of  third  parties  intervene 
in  the  interim  between  the  performance 
of  the  first  and  last  of  the  acts.  Bulette 
v.  Dodge,  2  Alaska  427  (1905)  ;  Charlton 
v.  Kelly,  principal  case. 

Conceding  that  where  discovery  is 
made  after  notice  of  location  is  filed 
it  relates  back  to  the  filing  of  the 
notice,  still  there  is  no  valid  location 
until  the  discovery  is  made,  and  up 
to  that  time  the  land  remains  govern- 
ment land;  thus  where  a  ditch  is  located 
between  the  time  of  filing  of  the  notice 
and  the  discovery,  it  remains  a  valid 
easement,  and  is  not  destroyed  by  the 
discovery.  Tuolumne  Consol.  Min.  Co.  v. 
Maier,  134  Cal.  583,  66  Pac.  863,  21  Mor. 
Min.  R.  678    (1901). 

A  location  is  valid  only  from  the  time 
of  discovery.  Prior  to  that  time  it  is 
government  land.  Tuolumne  Consol.  Min. 
Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863 
(1901). 

In  the  absence  of  any  intervening 
rights  of  third  parties,  the  discovery  of 


oil  in  public  land  located  after  the  filing 
of  notice,  etc.,  will  validate  location. 
Weed  v.  Snook,  144  Cal.  439,  77  Pac. 
1023   (1904). 

Where  discovery  is  not  made  until 
after  the  other  acts  of  location,  it  will 
not  relate  back  to  such  acts  so  as  to 
affect  any  rights  of  third  parties  which 
have  intervened  between  the  acts  of  loca- 
tion and  the  discovery.  Beals  v.  Cone, 
27  Colo.  473,  62  Pac.  948,  83  Am.  St. 
Pep.  92,  20  Mor.  Min.  R.  591    (1900). 

The  validity  of  the  location  of  a  min- 
ing claim  is  made  to  depend  primarily 
upon  the  discovery  of  a  vein  or  lode 
within  its  limits.  Until  such  discovery, 
no  rights  are  acquired  by  location. 
The  other  requisites  which  must  be  ob- 
served in  order  to  perfect  and  keep  alive 
a  valid  location  are  not  imperative  ex- 
cept as  against  the  rights  of  third  per- 
sons. If  the  necessary  steps  outside  of 
discovery  are  not  taken  within  the  time 
required  by  law,  but  are  complied  with 
before  the  rights  of  third  parties  inter- 
vene, they  relate  back  to  the  date  of  dis- 
covery; but  not  so  with  discovery,  for 
it  is  upon  that  act  that  the  very  life 
of  a  mineral  location  depends,  and  from 
the  time  of  such  discovery  only  would 
the  location  be  valid,  provided,  of  course, 
that  others  had  not  previously  acquired 


1905-1906] 


Chaelton  v.  Kelly. 


307 


"It  is  true  that  when  the  controversy  is  between  two  mineral  claim- 
ants, the  rule  respecting  the  sufficiency  of  a  discovery  of  mineral  is  more 
liberal  than  when  it  is  between  a  mineral  claimant  and  one  seeking  to 
make  an  agricultural  entry,  for  the  reason  that  where  land  is  sought  to 
be  taken  out  of  the  category  of  agricultural  lands  the  evidence  of  its 
mineral  character  should  be  reasonably  clear,  while  in  respect  to  mineral 
lands  in  a  controversy  between  mineral  claimants,  the  question  is  simply 
which  is  entitled  to  priority.  That,  it  is  true,  is  the  case  before  us.  But 
even  in  such  a  case,  as  shown  by  the  authorities  we  have  cited,  there  must 
be  such  a  discovery  of  mineral  as  gives  reasonable  evidence  of  the  fact 
either  that  there  is  a  vein  or  lode  carrying  the  precious  mineral,  or,  if  it 
is  claimed  as  placer  ground,  that  it  is  valuable  for  such  mining." 

The  facts  upon  which  discovery  in  Chrisman  v.  Miller  were  based  are 
stated  in  the  opinion  of  the  Supreme  Court  of  the  United  States  as  fol- 
lows : 

"Upon  the  question  of  discovery,  the  sole  evidence  is  that  of  Barieau 
himself.  Giving  the  fullest  weight  to  that  testimony,  it  amounts  to  no 
more  than  this:  that  Barieau  had  walked  over  the  land  at  the  time  he 


rights  adverse  thereto.  Beals  v.  Cone, 
27  Colo.  473,  62  Pac.  948,  83  Am.  St. 
Rep.  92,  20  Mor.  Min.  R.  591    (1900). 

The  order  of  time  in  which  the  several 
acts  of  location  are  performed  is  not  of 
the  essence  of  the  requirements  of  the 
law,  and  it  is  immaterial  that  the  dis- 
covery was  made  subsequent  to  the  com- 
pletion of  the  other  acts  of  location,  pro- 
vided only  that  all  the  necessary  acts 
are  done  before  intervening  rights  of 
third  persons  accrue.  If  all  the  other 
steps  had  been  taken  before  a  valid  dis- 
covery and  a  valid  discovery  then  follows, 
it  would  be  a  useless  and  idle  ceremony, 
which  the  law  does  not  require,  for  the 
locators  again  to  locate  their  claims  and 
refile  their  location  certificate  or  file  a 
new  one.  The  discovery  relates  back  to 
the  time  of  the  other  acts  of  location  so 
far  as  to  validate  the  location  from  the 
time  of  discovery.  Brewster  v.  Shoe- 
maker, 28  Colo.  126,  63  Pac.  309,  89  Am. 
St.  Rep.  188,  21  Mor.  Min.  R.  155  (1900). 

One  who  files  an  adverse  claim  in  the 
land  office  must  base  the  same  upon 
rights  which  he  had  at  that  time,  and 
cannot,  in  a  proceeding  to  test  the  same, 
set  up  an  after-acquired  title,  and  thus 
could  not  set  up  a  location  incomplete 
for   want   of   discovery   at   the   time   of 


making  the  adverse  claim.  Healey  v. 
Rupp,  37  Colo.  25,  86  Pac.  1015   (1906). 

The  general  rule  is  that  the  order  in 
which  the  various  steps  requisite  to 
make  a  valid  location  of  a  mining  claim 
are  taken  is  immaterial,  provided  they 
are  completed  before  the  rights  of  third 
parties  intervene.  Therefore  a  discovery, 
though  made  after  staking  and  record- 
ing, inures  to  the  benefit  of  the  locator, 
but  only  as  of  the  date  of  such  discovery, 
provided  of  course  that  others  have  not 
previously  acquired  rights  to  the  prem- 
ises upon  which  such  discovery  is  made. 
Healey  v.  Rupp,  37  Colo.  25,  86  Pac. 
1015   (1906). 

Where  a  discovery  is  made  by  a  pros- 
pector of  such  a  character  as  to  entitle 
him  to  make  a  valid  location  on  the 
16th  day  of  September,  and  he  sets  his 
discovery  stake  on  that  day,  partially 
stakes  and  marks  his  claim  on  the  17th, 
and  completes  his  staking  and  marking 
of  boundaries  according  to  law  on  the 
18th,  his  discovery  and  location  will  date 
from  the  16th  day  of  September.  Burke 
v.  McDonald,  2  Idaho,  1023,  3  Idaho 
(Hasb.)    296,   29   Pac.   98    (1892). 

Although  a  location  must  rest  upon 
and  remain  incomplete  until  discovery 
is  made,  it  is  not  required,  in  the  ab- 


308 


Water  and  Mineral  Cases. 


[Alaska 


posted  his  notice,  and  had  discovered  'indications'  of  petroleum.  Spe- 
cifically, he  says  that  he  saw  a  spring,  and  the  oil  comes  out  and  floats 
over  the  water  in  the  summer  time,  when  it  is  hot.  In  June,  1895,  there 
was  a  little  water  with  oil  and  a  little  oil  with  water  coming  out.  It  was 
dripping  over  a  rock  about  two  feet  high.  There  was  no  pool ;  it  was 
just  dripping  a  little  water  and  oil;  not  much  water.  This  is  all  the  dis- 
covery which  it  is  even  pretended  was  made  under  the  Barieau  location." 

Petroleum  oil  is  a  mineral,  and  is  located  as  a  placer  claim,  and  the 
same  rules  control  in  defining  what  is  a  discovery  thereof  as  control  in 
defining  what  is  a  discovery  of  gold,  and  in  the  case  of  the  Barieau  loca- 
tion, and  upon  the  facts  of  surface  discovery  quoted,  the  Supreme  Court 
of  California  held  that  there  was  no  discovery,  and  the  Supreme  Court 
of  the  United  States  affirmed  that  rule  and  said: 

"Giving  full  weight  to  the  testimony  of  Barieau,  we  should  not  be  justi- 
fied, even  in  a  case  coming  from  a  federal  court,  in  overthrowing  the 
finding  that  he  made  no  discovery.     There  was  not  enough  in  what  he 


sence  of  intervening  rights,  that  dis- 
covery shall  precede  the  other  acts  of  lo- 
cation. If  made  prior  to  any  interven- 
ing rights,  though  subsequent  to  mark- 
ing the  boundaries  and  recording  the 
claim,  the  location,  if  otherwise  good, 
will  be  validated  at  least  from  the  date 
of  discovery.  Whiting  v.  Straup,  p. 
,  vol.  2,  this  series. 

A  discovery  has  relation  to  the  bound- 
aries of  the  claim  within  which  it  is 
made,  fixes  the  right  of  possession  to 
the  claim  within  such  boundaries,  and 
has  no  relation  to  the  claim,  with  ex- 
tended boundaries,  where  the  boundaries 
were  extended  six  or  seven  months  later, 
and  so  as  to  include  or  overlap  a  portion 
of  the  location  or  claim  of  a  third  party. 
The  discovery  could  not  affect  the  rights 
of  a  third  party  in  the  overlapping 
ground.  Bigelow  v.  Conradt,  159  Fed. 
868,  87  C.  C.  A.  48    (1908). 

A  mining  claim  located  prior  to  dis- 
covery of  mineral  thereon  is  validated  by 
a  subsequent  discovery,  and  where  the 
location  is  first  made  by  cotenants  the  lo- 
cation, when  subsequently  validated  by 
the  discovery,  is  the  property  of  the  co- 
tenants  and  one  cotenant  cannot  ac- 
quire adverse  interests  in  such  case  any 
more  than  in  any  other  case.  Cedar 
Canyon  Consol.  Min.  Co.  v.  Yarwood,  27 


Wash.  271,  67  Pac.  749,  91  Am.  St.  Rep. 
841,  22  Mor.  Min.  R.  11    (1902). 

As  to  questions  of  priority  of  dis- 
covery, completing  location,  discovery 
and  location,  and  marking  of  boundaries, 
see  XIII,  note  to  Dwinnell  v.  Dyer,  vol. 
3,  this  series. 

B.      Rule  Applies  to  Placer  Locations. 

The  rule  that  a  discovery  made  after 
the  performance  of  the  other  acts  of  lo- 
cation validates  the  location  applies  to 
placer  as  well  as  lode  locations.  Miller 
v.  Chrisman,  140  Cal.  440,  73  Pac.  10S3, 
74  Pac.  440,  98  Am.  St.  Rep.  63  (1903)  ; 
affirmed  Chrisman  v.  Miller,  197  U.  S. 
373,  25  Sup.  Ct.  468,  49  L.  Ed.  770 
(1905). 

C.      Montana  Rule. 

A  location  to  be  effectual  must  be 
good  at  the  time  it  is  made,  and  it 
follows  that  a  location  void  at  the  time 
it  is  made,  because  of  no  discovery  or  be« 
cause  the  discovery  was  made  on  a 
claim  already  located  and  patented,  con- 
tinues and  remains  void,  and  is  not 
cured  or  made  effectual  by  subsequent 
discovery  on  the  claim  located.  The 
statute  does  not  permit  a  location  and 
then  a  discovery,  but  in  all  cases  the  dis- 
covery  must  precede   the   location.     We 


1905-1906] 


Charlton  v.  Kelly. 


309 


claims  to  have  seen  to  have  justified  a  prudent  person  in  the  expenditure 
of  money  and  labor  in  exploitation  for  petroleum.  It  merely  suggested  a 
possibility  that  the  ground  contained  oil  sufficient  to  make  it  chiefly  valu- 
able therefor." 

And  the  Supreme  Court  of  the  United  States  affirmed  the  holding  of 
the  Supreme  Court  of  California  that  such  slight  surface  indications  of 
oil  did  not  constitute  a  discovery  under  the  placer  mining  laws  of  the 
United  States.  You  are  now  instructed  that  the  rule  so  announced  by 
the  Supreme  Court  of  the  United  States  in  Chrisman  v.  Miller,  upon 
the  facts  so  read  to  you,  is  applicable  to  this  case,  and  so  far  as  the  evi- 
dence in  this  case  is  similar  to  that,  is  binding  upon  the  question  of  dis- 
covery. 

Upon  the  facts  so  quoted  by  the  Supreme  Court  of  the  United  States 
from  the  opinion  of  the  Supreme  Court  of  California  in  the  case  of  Chris- 
man  v.  Miller,  the  latter  court  ( 140  Cal.  440,  73  Pac.  1083,  98  Am.  St. 
Rep.  63)  said  on  the  question  of  discovery: 


cannot  do  away  with  the  express  lan- 
guage of  the  statute  and  hold  that  there 
may  be  a  valid  location  of  a  mining 
claim  before  there  has  been  a  discovery 
on  the  claim  located.  Upton  v.  Larkin, 
5  Mont.  600,  6  Pac.  66  (1885);  Upton 
v.  Larkin,  7  Mont.  447,  17  Pac.  728 
(1888). 

If  it  be  the  law  that  one  may  enter 
upon  a  claim  and  subsequently  make  a 
discovery  of  mineral  thereon  and  thus 
validate  the  claim,  such  would  be  ap- 
plicable to  an  occasion  where  a  person 
enters  upon  the  public  mineral  lands  and 
discovers  what  he  supposes  to  be  a  vein 
or  lode  and  makes  a  location  by  virtue  of 
such  discovery  before  he  has  discovered 
the  true  vein  or  lode,  and  subsequently, 
and  before  any  other  person  has>  acquired 
any  rights,  makes  such  discovery.  Upton 
v.  Larkin,  5  Mont.  600,  6  Pac.  66  (1885). 

A  notice  of  location  posted  upon  min- 
eral land  before  discovery  is  made,  is 
an  absolute  nullity.  Gemmell  v.  Swain, 
28  Mont.  331,  72  Pac.  662,  98  Am.  St. 
Rep.  570,  22  Mor.  Min.  R.  716  (1903). 

D.      Ontario   Rule. 

Discovery  must  first  be  made  upon  the 
property  before  there  is  any  right  to 
plant  a  single  post  or  run  a  single  line 


for  the  staking  out  of  a  mining  claim. 
In  re  Haight  et  al.  Ont.  Min.  Com.  Cas. 
32    (1906). 

Discovery  must  be  made  before  stak- 
ing the  claim,  and  a  subsequent  discovery 
will  not  cure  the  invalidity.  In  re  Mc- 
Crimmon  et  al.  Ont.  Min.  Com.  Cas.  79 
(1907)  ;  In  re  Lamothe,  Ont.  Min.  Com. 
Cas.  167   (1908). 

Actual  discovery  must  be  made  before 
a  mining  claim  can  be  staked  out,  and  a 
discovery  made  after  the  staking  will 
not  validate  the  claim.  In  re  Smith  et 
al.  Ont.  Min.  Com.  Cas.  314  (1908). 

Discovery  must  be  made  before  stak- 
ing or  the  claim  is  invalid.  In  re  Bil- 
sky  et  al.  Ont.  Min.  Com.  Cas.  349 
(1909). 

VI.       Same     Discovery    for    Two     Lo- 
cations. 

The  same  discovery  cannot  be  used  as 
a  basis  of  two  separate  locations.  Reiner 
v.  Schroeder,  146  Cal.  411,  80  Pac.  517 
(1905);  McKinstry  v.  Clark,  4  Mont. 
370,  1  Pac.  759  (1882)  ;  Reynolds  v.  Pas- 
coe,  24  Utah  219,  66  Pac.  1064  (1901)  ; 
In  re  Poplar  Creek  Consol.  Quartz  Mine, 
16  Land  Dec.  1    (1893). 

As  to  one  discovery  being  sufficient  for 
association  placer  claim,  see  paragraph 
III,  C,  of  this  note.. 


310 


Water  and  Mineral  Cases. 


[Alaska 


"To  constitute  a  discovery,  the  law  requires  something  more  than  con- 
jectures, hope,  or  even  indications.  The  geological  formation  of  the 
country  may  be  such  as  scientific  research  and  practical  experience  have 
shown  to  be  likely  to  yield  oil  in  paying  quantities.  Taken  with  this,  there 
may  be  other  surface  indications,  such  as  seepage  of  oil.  All  these  things 
may  be  sufficient  to  justify  the  expectation  and  hope  that,  upon  driving 
a  well  to  sufficient  depth,  oil  may  be  discovered,  but  one  and  all  they  do 
do  not  in  and  of  themselves  amount  to  a  discovery." 

This  case,  including  this  definition  of  discovery,  was  affirmed  upon 
appeal  to  the  Supreme  Court  of  the  United  States,  and  you  are  now  in- 
structed that  the  rule  and  definition  so  announced,  in  so  far  as  it  is  ap- 
plicable to  the  facts  in  the  case  before  you,  is  binding  upon  you  in  de- 
termining the  question  of  discovery  in  this  case. 

There  is  evidence  offered  by  the  plaintiffs  to  show  that  prior  to  June 
26,  1905,  when  the  defendant  claims  to  have  entered  upon  this  ground 


VII.      Place  of  Discovery. 
A.      Must    Be  on    Land   Claimed. 

The  discovery  must  be  made  within 
the  limits  of  the  land  located.  Larkin  v. 
Upton,  144  U.  S.  19,  12  Sup.  Ct.  614,  36 
L.  Ed.  330  (1891);  Jupiter  Min.  Co.  v. 
Bodie  Consol.  Min.  Co.,  7  Sawy.  96,  11 
Fed.  666  (1881);  Little  Pittsburgh 
Consol.  Min.  Co.  v.  Amie  Min.  Co.,  17 
Fed.  57  (1883);  Book  v.  Justice  Min. 
Co.,  58  Fed.  106,  17  Mor.  Min.  R.  617 
(1893);  In  re  Laney,  9  Land  Dec.  83 
(1889);  Waterloo  Min.  Co.  v.  Doe,  17 
Land  Dec.  Ill  (1893);  Bunker  Hill  & 
S.  M.  &  C.  Co.  v.  Shoshone  Min.  Co.,  33 
Land  Dec.  142  (1904)  ;  Wolfley  v.  Leba- 
non Min.  Co.,  4  Colo.  112,  (1878); 
Girard  v.  Carson,  22  Colo.  345,  45  Pac. 
508  (1896);  Golden  Terra  Min.  Co.  v. 
Smith,  2  Dak.  377,  11  N.  W.  98  (1881)  ; 
Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66 
(1885)  ;  O'Donnell  v.  Glenn,  8  Mont.  248, 
19  Pac.  302  (1888);  Watson  v.  May- 
berry,  15  Utah  265,  49  Pac.  479    (1897). 

Where  a  shaft  is  sunk  outside  of  the 
ground  located,  and  drifts  run  from  it 
into  the  ground,  it  cannot  avail  unless  a 
discovery  of  a  lode  within  the  ground  is 
shown.  Zalars  v.  Evans,  2  MeC.  39, 
5  Fed.  172    (1880). 

Discovery  of  mineral  within  the  limits 
of  the  claim  is  essential  to  a  valid  loca- 


tion. Score  v.  Griffin,  9  Ariz.  347,  83 
Pac.  350    (1905). 

In  order  to  constitute  a  valid  location, 
there  must  be  a  discovery  of  a  vein 
or  lode  of  mineral  bearing  rock  in  place, 
within  the  limits  of  the  claim  attempted 
to  be  located,  and  the  discovery  of  a 
vein  made  upon  an  adjoining  location 
owned  by  the  locator  and  others,  which 
vein,  if  maintaining  the  same  strike  as 
at  the  point  of  discovery,  would  pass 
into  the  claim  attempted  to  be  located, 
but  which  had  not  been,  as  a  matter  of 
fact,  traced  or  shown  to  have  passed 
into  the  ground  attempted  to  be  located, 
is  not  a  sufficient  discovery  to  satisfy  the 
requirements  of  the  statute.  Michael  v. 
Mills,  22  Colo.  439,  46  Pac.  429   (1896). 

To  make  a  valid  location  of  a  lode 
mining  claim  there  must  be  a  discovery 
within  the  limits  of  the  claim  located 
of  a  vein  or  crevice  of  quartz  of  ore, 
with  trace  of  well-defined  wall  on  a  lead, 
lode  or  ledge  of  rock  in  place,  containing 
gold,  silver  or  other  valuable  mineral  de- 
posits. Upton  v.  Larkin,  7  Mont.  449, 
17  Pac.  728   (1888). 

It  is  by  means  of  the  discovery  shaft 
or  the  cross  cut  the  locator  manifests 
his  intention.  If  he  chooses  to  make 
such  manifestation  by  means  of  a  dis- 
covery  shaft,   he   must   do  the  work   on 


1905-1906] 


Chaklton  v.  Kelly. 


311 


and  initiated  his  location,  the  plaintiffs,  by  A.  J.  Kelsey  and  John  Klonos 
and  Louis  Schmidt,  discovered  gold  by  panning  in  a  little  draw  on  the 
claim  in  controversy.  There  is  evidence  offered  to  show  that  at  that  place 
these  witnesses  discovered  colors  of  gold  and  even  a  few  cents'  worth 
in  what  is  commonly  called  "muck"  by  the  miners,  being,  however,  in 
the  bed  of  a  little  stream  in  the  draw,  and  in  rather  heavier  material 
than  the  ordinary  muck.  It  is  for  you  to  determine  from  all  the  evidence 
in  the  case  whether  or  not  the  witnesses  actually  so  found  gold  at  that 
time  and  place  as  testified  to  by  them,  and  if  you  believe  from  the  evi- 
dence that  they  did  so  find  such  gold,  you  should  then  determine  whether 
or  not  it  was  of  sufficient  quantity  and  character  and  found  under  such 
conditions  as  to  constitute  a  discovery,  and  whether  such  finding  would 
justify  a  man  of  ordinary  prudence,  not  necessarily  a  skilled  miner,  in 
the  expenditure  of  his  time  and  money  in  the  development  of  the  prop- 
erty. If  you  shall  find  and  believe  from  the  evidence  in  this  case  that 
Klonos,  Kelsey  and  Schmidt  found  the  colors  and  particles  of  gold  so 


the  claim.  The  shaft  must  be  sunk  on 
the  claim,  for  so  the  statute  declares, 
and  this  is  done  in  order  that  any  one 
interested  may  see  the  evidence  of  his 
good  faith;  and  for  like  reason  if  he 
makes  manifest  his  intention  by  means 
of  a  cross  cut  there  must  be  an  opening 
upon  the  claim,  otherwise  the  owner  of 
the  claim  upon  which  such  opening  is 
Bituated  may  rightfully  refuse  admission 
to  such  cross  cut  to  any  and  every  one 
except  only  the  locator,  and  if  the  lo- 
cator has  only  a  license  to  use  such 
opening,  he  may  at  any  time  deny  ad- 
mission to  the  locator  himself.  It  cannot 
be  that  the  requirements  of  the  law  are 
met  by  doing  work  over  which  the  lo- 
cator himself  has  no  control  as  a  matter 
of  right  and  from  which  he  may  be  ex- 
cluded at  any  time  by  an  entire  stranger. 
Butte  Consol.  Min.  Co.  v.  Barker,  35 
Mont.  327,  89  Pac.  302    (1907). 

The  discovery  must  be  made  within  the 
limits  of  the  location  as  it  is  ultimately 
marked  upon  the  ground.  McPherson  v. 
Julius,  17  So.  Dak.  98,  95  N.  W.  428 
(1903). 

It  is  well  settled  that  whether  it  be  a 
lode  or  placer  claim,  a  discovery  of  min- 
eral within  the  limits  of  the  claim  is  es- 
sential to  a  valid  location  of  a  mining 


claim  on  the  public  ground.  Whiting  v. 
Straup,  p. ,  vol.  2,  this  series. 

Where  discovery  was  described  in  ap- 
plication for  mining  claim  as  being  near 
the  north  boundary,  where  it  appeared 
no  sufficient  discovery  had  been  made, 
and  that  a  sufficient  discovery  had  been 
made  by  other  parties  near  the  south- 
west corner,  the  applicant  at  the  hear- 
ing claiming  his  discovery  to  have  been 
at  the  southwest  corner,  the  other  evi- 
dence being  conflicting,  it  was  held  no 
sufficient  discovery  was  shown.  In  re 
Legris,  Ont.  Min.  Com.  Cas.  285    (1908). 

The  discovery  must  be  within  the 
limits  of  the  claim  as  applied  for,  and 
where  it  was  outside  such  limits,  al- 
though within  the  boundaries  as  actually 
staked  on  the  ground,  the  claim  was 
held  invalid.  In  re  Burd  &  Paquetee, 
Ont.  Min.  Com.  Cas.  419    (1909). 

B.      Anywhere  on  Land  Claimed. 

Where  the  statute  does  not  provide  for 
a  discovery  shaft  or  notice  at  the  point 
of  discovery  any  valid  discovery  prior 
to  location  is  sufficient  as  the  basis 
thereof.  Little  Pittsburgh  Consol.  Min. 
Co.  v.  Amie  Min.  Co.,  17  Fed.  57  (1883)  ; 
Perigo  v.  Erwin,  85  Fed.  904  (1898), 
affirmed   93    Fed.   608,   35   C.   C.  A.   482 


312 


Water  and  Mineral  Cases. 


[Alaska 


testified  to  by  them  in  the  draw  or  small  water  course  on  the  surface  of 
the  ground  in  dispute,  then  you  should  determine  whether  or  not  such 
finding  was  of  sufficient  character,  and  found  in  such  places,  and  under 
such  conditions,  as  to  constitute  such  a  discovery  of  mineral  as  will  satisfy 
the  law. 

You  are  instructed  that  mere  indications,  however  strong,  are  not  suffi- 
cient to  answer  the  requirements  of  the  statute,  which  requires,  as  one  of 
the  essential  conditions  of  the  making  of  a  valid  location  of  unappropri- 
ated public  land  of  the  United  States  under  the  mining  laws,  a  discovery 
of  mineral  within  the  limits  of  the  claim.  Indication  of  the  existence 
of  a  thing  is  not  the  thing  itself. 

An  "indication"  in  the  sense  used  in  these  instructions  means  that  which 
merely  points  to  or  tends  to  prove.  If  you  shall  find  and  believe  from  the 
evidence  in  this  case  that  Kelsey,  Klonos  and  Schmidt  actually  found 
colors  of  gold,  or  even  small  particles  of  gold,  in  the  draw  or  water  course 


(1899)  ;  In  re  Cayuga  Lode,  5  Land  Dec. 
703  (1887)  ;  O'Donnell  v.  Glenn,  8  Mont. 
248,  19  Pac.  302  (1888);  Silver  City 
Gold  Min.  Co.  v.  Lowry,  19  Utah  334, 
57  Pac.  11    (1899). 

Where  valuable  ore  was  not  discovered 
in  the  discovery  shaft,  but  was  discov- 
ered elsewhere  on  the  claim,  and  more 
work  was  done  than  would  be  equivalent 
to  a  discovery  shaft,  it  was  held  suffi- 
cient to  meet  the  requirements  of  the 
statute.  Gibson  v.  Hjul  (Nev.), 
108  Pac.  759   (1910). 

C.     In   Discovery  Shaft. 
1.      In   General. 

Where  the  statute  requires  a  discovery 
snait,  the  discovery  must  be  made  in 
that  shaft. 

United  States. — Little  Gunnell  Gold 
Min.  Co.  v.  Kimber,  Fed.  Cas.  No.  8402, 
1  Mor.  Min.  R.  536  (1878);  Faxon  v. 
Barnard,  2  McC.  44,  4  Fed.  702  (1880)  ; 
Erhardt  v.  Boaro,  3  McC.  19,  8  Fed.  692 
(1881);  Van  Zandt  v.  Argentine  Min. 
Co.,  2  McC.  159,  8  Fed.  725,  4  Mor.  Min. 
R.  441  (1881)  ;  Terrible  Min.  Co.  v.  Ar- 
gentine Min.  Co.,  5  McC.  639,  89  Fed. 
583  (1883);  Wight  v.  Tabor,  2  Land 
Dec.  738  (1884);  Conlin  v.  Kelly,  12 
Land  Dec.   1    (1891). 


Colorado. — Gray  v.  Truby,  6  Colo.  278 
(1882);  Armstrong  v.  Lower,  6  Colo. 
393  (1882);  Strepey  v.  Stark,  7  Colo. 
614,  5  Pac.  Ill  (1884)  ;  Quimby  v.  Boyd, 
8  Colo.  194,  6  Pac.  462  (1884);  Mc- 
Ginnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652 
(1884);  Electro-Magnetic  Min.  Co.  v. 
Van  Auken,  9  Colo,  204,  11  Pac.  80 
(1886)  ;  Bryan  v.  McCaig,  10  Colo.  309, 
15  Pac.  413  (1887);  Beals  v.  Cone,  27 
Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep. 
92,  20  Mor.  Min.  R.  591  (1900)  ;  Brews- 
ter v.  Shoemaker,  28  Colo.  176,  63  Pac. 
309,  89  Am.  St.  Rep.  188,  53  L.  R.  A.  793 
(1900);  McMillen  v.  Ferrum  Min.  Co., 
32  Colo.  38,  74  Pac.  461,  105  Am.  St. 
Rep.  64  (1903)  ;  Miller  v.  Girard,  3  Colo. 
App.  278,  33  Pac.  69  (1893);  Moyle  v. 
Bullene,  7  Colo.  App.  308,  44  Pac.  69 
(1896)  ;  Fleming  v.  Daly,  12  Colo.  App. 
439,  54  Pac.  946   (1889). 

Montana. — O'Donnell  v.  Glenn,  8  Mont. 
248,  19  Pac.  302  (1888);  Flick  v.  Gold 
Hill  &  L.  M.  Min.  Co.,  8  Mont.  298,  20 
Pac.  807  (1889);  Ormund  v.  Granite 
Mountain  Min.  Co.,  11  Mont.  303,  28 
Pac.  289  (1891);  Walsh  v.  Mueller,  16 
Mont.  180,  40  Pac.  292  (1895)  ;  Sanders 
v.  Noble,  22  Mont.  110,  55  Pac.  1037 
(1899). 

Nevada. — Sisson  v.  Sommers,  24  Nev. 
379,   55   Pac.   829    (1899). 


1905-1906] 


Charlton  v.  Kelly. 


313 


on  the  surface  of  this  claim,  nearly  two  hundred  feet  above  the  bed  rock, 
and  on  the  surface  of  a  deep  layer  of  nonmineral  bearing  muck,  then  you 
are  to  consider  whether  it  was  found  in  such  quantity  and  under  such 
circumstances  and  conditions  as  to  justify  a  man  of  ordinary  prudence, 
not  necessarily  a  skilled  miner,  in  the  expenditure  of  his  time  and  money 
in  the  development  of  the  property,  or  whether  it  was  so  limited  and  of 
so  little  value,  and  found  under  such  circumstances  and  conditions,  as 
merely  to  indicate — to  point  out  and  tend  to  prove,  only — that  it  came 
from  higher  and  adjoining  lands,  and  had  no  weight,  value,  or  connec- 
tion with  any  such  gold  on  that  ground  as  would  justify  development. 
Was  it  sufficient  in  quantity,  and  found  in  such  a  place,  and  under  such 
circumstances,  as  to  justify  a  man  of  ordinary  prudence,  not  necessarily 
a  skilled  miner,  in  the  expenditure  of  his  time  and  money  in  the  develop- 
ment of  the  property?  If  it  was  only  a  mere  indication  of  gold  on  ad- 
joining and  higher  lands,  or  in  the  neighborhood,  but  not  on  the  land  in 


New  Mexico. — Zeckendorf  v.  Hutchi- 
son, 1  N.  M.  476,  9  Mor.  Min.  R.  483 
(1871). 

Where  the  statute  requires  a  discovery 
shaft,  the  location  rests  on  -what  may 
be  found  in  that  shaft,  and  if  nothing 
is  found  there,  or  if  what  is  found  there 
does  not  extend  beyond  the  limits  of  the 
shaft,  the  discovery  of  a  body  of  ore 
elsewhere  in  the  claim  will  not  avail. 
Van  Zandt  v.  Argentine  Min.  Co.,  2 
McC.  159,  8  Fed.  725,  4  Mor.  Min.  R. 
441   (1881). 

Under  the  Colorado  Statute,  where  a 
lode  is  cut  at  a  depth  of  ten  feet  below 
the  surface  by  means  of  an  open  cut, 
cross  cut  or  tunnel,  it  is  the  same  as  if 
a  discovery  shaft  were  sunk  on  the  vein 
to  that  depth.  Gray  v.  Truby,  6  Colo. 
278  (1882);  Electro-Magneto  Co.  v. 
Van  Auken,  9  Colo.  204,  11  Pac.  80 
(1886)  ;  Brewster  v.  Shoemaker,  28  Colo. 
176,  63  Pac.  309,  89  Am.  St.  Rep.  188, 
53  L.  R.  A.  793  (1900). 

In  states  having  provision  for  dis- 
covery shaft  such  as  Colorado,  where  the 
locator  himself  selects  the  discovery 
shaft,  the  one  in  which  discovery  of 
mineral  has  been  made,  and  there  posts 
his  location  stake  and  bases  his  loca- 
tion upon  such  discovery,  he  may  not 
after   intervening   rights    have   attached, 


abandon  and  disregard  the  same,  or  neg- 
lect to  comply  with  the  provisions  of  the 
law  and  select  another  discovery  upon 
which  his  location  is  not  predicated. 
McMillen  v.  Ferrum  Min.  Co.,  32  Colo. 
38,  74  Pac.  461,  105  Am.  St.  Rep.  64 
(1903). 

Knowedge  of  the  existence  of  a  vein 
in  an  old  abandoned  shaft  situated  upon 
the  ground  attempted  to  be  located,  will 
not  avail  the  locator  where  he  sinks  his 
discovery  shaft,  designating  it  as  such, 
upon  another  portion  of  the  ground,  and 
fails  to  discover  any  mineral  therein. 
McMillen  v.  Ferrum  Min.  Co.,  32  Colo. 
38,  74  Pac.  461,  105  Am.  St.  Rep.  64 
(1903). 

The  purpose  of  the  discovery  shaft 
is  to  expose  the  vein  upon  which  the  lo- 
cation is  based,  or  at  least  one  vein,  and 
a  discovery  elsewhere  within  the  limits 
of  the  claim  will  not  supply  its  place. 
McMillen  v.  Ferrum  Min.  Co.,  32  Colo. 
38,  74  Pac.  461,  105  Am.  St.  Rep.  64 
(1903). 

The  discovery  shaft  is  an  essential  evi- 
dence of  title,  and  without  it  the  claim 
cannot  be  valid.  Miller  v.  Girard,  3 
Colo.  App.  278,  33  Pac.  69    (1893). 

Under  the  Colorado  Statute,  discovery 
must  be  made  in  the  discovery  shaft,  and 
for  the  purposes  of  location,  a  discovery 


314 


Water  and  Mineral  Cases. 


[Alaska 


controversy,  if  it  was  not  found  in  such  quantity,  character,  or  value,  nor 
under  such  circumstances  or  conditions,  as  to  justify  a  man  of  ordinary 
prudence,  not  necessarily  a  skilled  miner,  in  the  expenditure  of  his  time 
and  money  in  the  development  of  the  property,  then  it  would  not  con- 
stitute a  discovery  such  as  would  satisfy  the  law,  and  would  only  be  an 
indication ;  and  if  you  should  so  find  from  the  evidence  in  this  case  your 
decision  on  that  point  should  be  against  the  plaintiffs. 

It  is  entirely  true  that  the  statute,  requiring  as  a  condition  to  a  valid 
location  the  discovery  of  mineral  within  the  limits  of  the  claim,  should, 
as  between  conflicting  claimants  to  mineral  lands,  receive  a  broad  and 
liberal  construction,  and  so  as  to  protect  bona  fide  locators  who  have 
really  made  a  discovery  of  mineral,  whether  it  be  under  the  statute  pro- 
viding for  the  location  of  vein  or  lode  claims  or  placer  claims.  While  the 
statute  requiring  the  discovery  of  mineral  as  one  of  the  essential  condi- 
tions of  a  valid  location  of  land  under  the  mining  laws  should  be  liberally 


outside  the  discovery  shaft  is  not  suffi- 
cient. Fleming  v.  Daly,  12  Colo.  App. 
439,  54  Pac.  946    (1899). 

Where  the  statute  requires  the  sink- 
ing of  a  discovery  shaft,  such  shaft 
must  be  sunk  upon  each  claim  where  a 
number  of  claims  are  located  by  different 
parties  along  the  same  lode,  but  held  in 
severalty.  Zeckendorf  v.  Hutchison,  1 
N.  M.  476,  9  Mor.  Min.  R.  483  (1871). 

2.      Open   Cut  or  Adit. 

By  the  Colorado  Statute,  an  open  cut 
and  cross  cut  or  a  tunnel  or  adit  are 
made  the  equivalent  of  a  discovery  shaft, 
and  while  it  is  expressly  provided  that 
the  first  three  shall  cut  the  lode  at  a 
depth  of  ten  feet  below  the  surface,  there 
is  no  such  requirement  in  the  case  of  an 
adit.  It  is  only  required  to  be  at  least 
ten  feet  in  along  the  lode  from  the  point 
where  the  lode  may  be  in  any  manner 
discovered,  but  the  context  and  lan- 
guage quite  clearly  indicate  an  intention 
upon  the  part  of  the  legislature  in  such 
a  case  to  substitute  horizontal  develop- 
ment in  and  along  the  lode  for  a  distance 
of  ten  feet  for  the  ten  feet  in  depth  re- 
quired in  other  cases;  and  while  there 
is  no  express  requirement  of  depth  or 
development,  it  must  always  be  such  that 
its    dimensions    and    character    make    it 


fairly  the  equivalent  of  a  discovery  shaft, 
and  bring  it  substantially  within  the 
meaning  of  the  term  adit,  to-wit,  an  en- 
trance or  passage,  a  term  in  mining  used 
to  denote  the  opening  by  which  a  mine 
is  entered,  or  by  which  water  and  ores 
are  carried  away,  called  also  a  drift. 
Gray  v.  Truby,  6  Colo.  278    (1882). 

Under  the  Colorado  Statute  providing 
that  a  ten-foot  adit  be  considered  equiv- 
alent to  a  discovery  shaft,  the  adit  may 
be  open,  or  under  cover,  or  part  open 
and  part  under  cover,  dependent  upon 
the  nature  of  the  ground,  etc.  Electro- 
Magnetic  Min.  &  Dev.  Co.  v.  Van  Auken, 
9  Colo.  204,  11  Pac.  80  (1886). 

3.      Sinking  Second  Shaft. 

The  absence  of  a  discovery  in  the  dis- 
covery shaft  cannot  be  supplied  by  dis- 
covery of  a  vein  in  another  shaft. 
Beals  v.  Cone,  27  Colo.  473,  62  Pac.  948, 
83  Am.  St.  Rep.  92,  20  Mor.  Min.  R.  591 
(1900). 

The  miner  is  not  bound  to  make  the 
first  shaft  or  opening  which  he  may  sink 
his  discovery  shaft.  If,  after  sinking  in 
one  place  and  failing  to  find  a  lode,  he 
sinks  in  another  and  finds  one,  he  may 
make  the  second  his  discovery  shaft,  on 
which  location  may  be  based.  It  is  com- 
petent for  him  to  make  any  shaft  he  may 


1905-1906] 


Charlton  v.  Kelly. 


315 


construed  in  behalf  of  bona  fide  locators,  the  statutory  requirement  that 
discovery  shall  be  made  should  not  be  ignored,  and  the  discovery  must 
be  of  such  a  substantial  kind  and  character  as  to  convince  the  jury,  by  a 
fair  preponderance  of  the  evidence,  that  it  would  justify  a  man  of  ordi- 
nary prudence,  not  necessarily  a  skilled  miner,  in  the  expenditure  of  his 
time  and  money  in  the  development  of  the  property. 

Did  the  plaintiffs  make  such  a  discovery  prior  to  the  entry  of  the  de- 
fendant Kelly  on  the  ground  in  dispute  on  July  i,  1905?  In  answering 
that  inquiry  you  may  and  should  consider  all  the  evidence  on  both  sides 
in  relation  to  the  place  where  Klonos,  Kelsey,  and  Schmidt  say  they  found 
mineral  on  the  surface ;  the  depth  to  bed  rock ;  the  character  of  the  over- 
lying muck ;  its  depth ;  and  the  location  of  the  pay  gravels,  and  their 
depth  from  the  surface.  You  should  consider  all  the  evidence  offered 
by  miners  and  others  in  relation  to  the  character  of  the  so-called  "muck," 
its  mineral  or  nonmineral  bearing  quality,  and  whether  colors  or  small 


sink  a  discovery  shaft,  but  it  must  dis- 
close a  lode  or  vein  of  rock  in  place,  not 
simply  mineral  in  a  fragmentary  con- 
dition. Terrible  Min.  Co.  v.  Argentine 
Min.  Co.,  5  McC.  639,  89  Fed.  583 
(1883). 

D.      In    Tunnel. 

Discovery  of  a  vein  in  a  tunnel  in  ac- 
cordance with  U.  S.  Rev.  St.,  sec.  2323 
gives  the  right  of  location,  and  this  is 
not  lost  by  failure  to  mark  the  boun- 
daries of  the  claim  upon  the  surface. 
Campbell  v.  Ellet,  167  U.  S.  116,  17  Sup. 
Ct.  765,  42  L.  Ed.  101    (1897). 

Where  discovery  is  made  in  a  tunnel 
it  has  the  same  effect  as  discovery  made 
from  the  surface.  Risco-Aspen  Consol. 
Min.  Co.  v.  Enterprise  Min.  Co.,  53  Fed. 
321    (1892). 

Where  discovery  is  made  in  a  tunnel 
the  tunnel  takes  the  place  of  and  does 
away  with  the  necessity  for  a  discovery 
shaft.  Risco-Aspen  Consol.  Min.  Co.  v. 
Enterprise  Min.  Co.,  53  Fed.  321   (1892). 

Where  discovery  is  made  in  a  tunnel, 
under  the  provision  of  section  2323,  U. 
S.  Rev.  Stat.,  it  is  not  necessary  that 
another  discovery  be  made  from  the  sur- 
face, and  the  discovery  in  the  tunnel 
will  be  held  valid  as  against  a  subse- 
quent discovery  of  the  same  lode  from 


the  surface.  Ellet  v.  Campbell,  18  Colo. 
510,  33  Pac.  521  (1893),  affirmed  167 
U.  S.  116,  17  Sup.  Ct.  765,  42  L.  Ed.  101 
(1896). 

The  line  of  the  tunnel  mentioned  in 
the  Acts  of  May  10,  1872,  was  intended 
to  describe  and  designate  a  width 
marked  between  the  exterior  lines  or  the 
sides  of  the  tunnel,  and  does  not  mean 
the  entire  width  and  length  of  the  sur- 
veyed tunnel  site.  Corning  Tunnel  & 
Min.  Co.  v.  Pell,  4  Colo.  507,  14  Mor. 
Min.  R.  612   (1878). 

A  tunnel  located  and  run  for  the  de- 
velopment of  veins  or  lode  pursuant  to 
the  provisions  of  section  2323,  Rev.  St. 
U.  S.,  becomes  a  mining  claim  and  enti- 
tles the  owner  thereof  to  make  an  ad- 
verse claim  against  one  claiming  to  lo- 
cate upon  the  line  of  the  tunnel,  and 
while  the  same  was  being  prosecuted 
with  reasonable  diligence  such  tunnel 
owner  was  entitled  to  proceed  under  the 
provisions  of  section  2326,  Rev.  St.  U.  S. 
Back  v.  Sierra  Nevada  Min.  Co.,  2  Idaho 
386,  2  Idaho  (Hasb.)  420,  17  Pac.  83 
(1888). 

E.      On   Any   Part   of   Lode. 

When  the  vein  or  lode  does  not  crop 
out,  but  is  what  is  called  a  blind  vein  or 
lode,  the  apex  thereof  would  necessarily 


316 


Water  and  Mineral  Cases. 


[Alaska 


particles  of  gold  found  there  are  mere  indications  of  mineral  in  the 
neighborhood,  or  whether  alone,  and  without  the  subsequent  means  of 
information  that  gold  existed  nearly  two  hundred  feet  below  on  bed 
rock,  they  would  justify  a  man  of  ordinary  prudence,  not  necessarily  a 
skilled  miner,  in  the  expenditure  of  his  time  and  money  in  the  develop- 
ment of  the  property.  You  should  consider  the  geological  and  natural 
conditions  of  the  ground  as  shown  by  the  evidence.  After  considering 
all  the  evidence  in  relation  thereto,  you  should  determine:  (i)  Did 
the  plaintiffs  or  their  agents,  Klonos  and  Kelsey,  and  the  witness  Schmidt 
find  any  gold  on  the  surface,  as  so  testified  to  by  them?  And  (2)  if 
they  did,  was  it  of  such  quantity,  character,  and  found  under  such  cir- 
cumstances and  in  such  connection  with  natural  conditions,  as  to  justify 
a  man  of  ordinary  prudence,  not  necessarily  a  skilled  miner,  in  the  ex- 
penditure of  his  time  and  money  in  the  development  of  the  property? 
If  you  find  that  plaintiffs  or  their  agents  did  find  gold  on  the  surface,  and 


be  below  the  surface  of  the  ground,  and 
if  the  locator  at  the  time  of  location 
found,  or  if  from  the  work  done  by 
others  prior  thereto  he  could  see,  at  any 
point  within  the  limits  of  said  location, 
a  lode  or  vein,  the  top  or  apex  of  which 
was  within  the  lines  of  the  location,  he 
made  a  discovery  of  a  lode  or  vein  such 
as  the  law  requires  to  be  made  to 
entitle  him  to  locate  the  ground,  and  it 
is  wholly  immaterial  as  to  the  amount 
or  quantity  of  such  vein  or  lode  which 
may  have  been  found  within  the  limits 
of  the  location,  Any  amount  of  it  would 
suffice,  however  small,  either  as  to  the 
amount  of  the  vein  or  its  apex,  within 
the  limits  of  the  location.  Larkin  v. 
Upton,  144  U.  S.  19,  12  Sup.  Ct.  614,  36 
L.  Ed.  330   (1892). 

Any  portion  of  the  apex  on  the  course 
or  strike  of  the  vein  found  within  the 
limits  of  a  claim  is  a  sufficient  discovery 
to  entitle  the  locator  to  obtain  title. 
Larkin  v.  Upton,  144  U.  S.  19,  12  Sup. 
Ct.  614,  36,  L.  Ed.  330    (1892). 

It  is  unquestioned  that  the  top  or 
apex  of  a  vein  must  be  within  the  boun- 
daries of  a  claim  in  order  to  enable  a 
locator  to  perfect  his  location  and  obtain 
title.  Larkin  v.  Upton,  144  U.  S.  19,  12 
Sup.  a.  614,  36  L.  Ed.  330    (1892). 


Discovery  and  location  of  a  vein  on  its 
"dip"  will  prevail  against  a  junior  dis- 
covery and  location  on  the  apex  of  the 
vein.  Van  Zandt  v.  Argentine  Min.  Co., 
2  McC.  159,  8  Fed.  725,  4  Mor.  Min.  R. 
441    (1881). 

In  the  absence  of  statute  requiring 
anything  further,  the  existence  and 
knowledge  of  gold  and  silver  bearing 
rock  showing  upon  the  surface  of  the 
claim,  being  a  part  of  the  ledge  "cropped 
out"  is  sufficient  as  a  discovery.  Score 
v.  Griffin,  9  Ariz.  295,  80  Pac.  331 
(1905),  reversed  upon  the  ground  that 
upon  rehearing  it  appeared  that  the  dis- 
covery, whatever  it  was,  was  made  out- 
side of  the  limits  of  the  land  located. 
Score  v.  Griffin,  9  Ariz.  347,  83  Pac.  350 
(1905). 

Discovery  of  mineral  on  the  dip  of  a 
vein  below  the  surface  by  means  of  a 
tunnel  and  where  the  vein  had  never 
opened  upon  the  surface  or  shown  to 
have  an  apex  within  the  limits  of  the 
claim  as  located,  is  sufficient.  Brewster 
v.  Shoemaker,  28  Colo.  176,  63  Pac.  309, 
89  Am.  St.  Rep.  188,  53  L.  R.  A.  793 
(1900). 

F.      On    Patented    Land. 

A  discovery  made  within  the  limits  of 
a  patented  claim,  or  upon  patented  land, 


1905-1906] 


Chaklton  v.  Kelly. 


317 


that  it  was  of  such  quantity  and  character,  and  found  under  such  circum- 
stances and  in  such  connection  with  natural  conditions  as  to  justify  a 
man  of  ordinary  prudence,  not  necessarily  a  skilled  miner,  in  the  expendi- 
ture of  his  time  and  money  in  the  development  of  the  property,  then  it 
was  sufficient  to  constitute  a  discovery  in  the  meaning  of  the  law,  and  you 
should  find  on  that  question  for  the  plaintiffs,  but  if  you  shall  not  so  find, 
by  a  preponderance  of  the  evidence,  then  it  was  insufficient,  and  you 
should  find  on  that  question  against  the  plaintiffs  and  for  the  defendants. 
4.  You  are  further  instructed  that  if  you  shall  find  and  believe  from 
the  evidence  in  this  case  that  prior  to  June  26,  1905,  when  the  defendants 
claim  to  have  located  the  ground  in  dispute,  and  prior  to  July  1,  1905, 
when  it  is  admitted  that  the  defendants  went  into  possession  of  the 
ground,  and  have  ever  since  remained  in  possession  thereof,  the  plain- 
tiffs personally,  or  by  their  agent,  so  marked  the  boundaries  of  the  claim 
upon  the  ground  by  stakes  or  other  permanent  monuments  that  the 
same  could  be  readily  traced,  and  filed  their  notice  of  location  thereof 


is  not  sufficient  as  the  basis  of  a  valid 

location.     Belke   v.   Meagher,   104   U.    S. 

279,  26  L.  Ed.  735    (1881)  ;   Iron  Silver 

Min.  Co.  v.  Mike  Co.,  143  U.  S.  394,  12 

Sup.    Ct.    543,    36    L.    Ed.    201     (1891); 

Lowry  v.  Silver  City  Gold  &  Silver  Min. 

Co.,   179  U.  S.   196,  21  Sup.  Ct.   104,  45 

L.  Ed.  151,  21  Mor.  Min.  R.  113  (1900)  ; 

Little    Pittsburgh    Consol.    Min.    Co.    v. 

Amie  Min.     Co.,     17     Fed.    57     (1883); 

Crown  Point  Min.  Co.  v.  Buck,  97  Fed. 

462    (1899);    In   re   Williams,   20   Land 

Dec.  453    (1895);   Armstrong  v.   Lower, 

6  Colo.  393    (1882)  ;  Moyle  v.  Bullene.  7 

Colo.   App.    308,     44    Pac.     69     (1896); 

Golden  Terra  Min.  Co.  v.  Mahler,  4  Pac. 

C.  L.  J.  405,  4  Mor.  Min.  R.  390    (Dist. 

Ct.  Dakota    (1879)  ;   Upton  v.  Larkin,  5 

Mont.  600,  6  Pac.  66   (1885)  ;  Ormund  v. 

Granite  Mt.  Min.  Co.,  11  Mont.,  303,  28 

Pac.  289    (1891);   McPherson  v.   Julius, 

17   So.   D.   98,   95   N.   W.    428     (1903); 

Eilers  v.   Boatman,   3   Utah   159,  2   Pac. 

66   (1881). 

Where  the  discovery  shaft  is  sunk 
upon  an  overlapping  patented  claim,  but 
is  thereafter  abandoned  and  a  new  dis- 
covery shaft  disclosing  the  vein  is  sunk 
upon  the  claim,  the  title  is  not  invali- 
dated by  reason  of  the  first  discovery 
shaft  being    upon    the    patented    claim. 


Lowry  v.  Silver  City  Gold  &  Silver  Min. 
Co.,  179  U.  S.  196,  21  Sup.  Ct.  104,  45 
L.  Ed.  151,  21  Mor.  Min.  R.  113   (1900). 

Title  can  only  be  acquired  by  discovery 
and  occupation  on  the  unoccupied  lands 
of  the  government.  No  title  by  discovery 
can  be  had  by  an  entry  within  the  sur- 
face lines  of  patented  lands.  Moyle  v. 
Bullene,  7  Colo.  App.  308,  44  Pac.  69 
(1896). 

Title  to  a  mining  claim  can  only  be 
initiated  by  discovery  upon  the  unoc- 
cupied lands  of  the  government.  No 
rights  are  acquired  by  entry  within  the 
surface  lines  of  patented  lands  or  other 
lands  which  are  withdrawn  from  the 
body  of  public  lands.  McPherson  v. 
Julius,  17  S.  D.  98,  95  N.  W.  428  (1903). 

G.      Within  Town  Site. 

The  fact  of  discovery  being  made  with- 
in the  patented  limits  of  a  town  will  not 
void  a  location  where  it  was  well  known 
that  a  mineral  bearing  vein  existed  at 
that  place  long  prior  to  the  application 
for  the  patent.  Moyle  v.  Bullene,  7 
Colo.  App.  308,  44  Pac.  69    (1896.). 

Discovery  must  be  made  outside  the 
limits  of  the  town  site  where  the  claim 
lies  partly  within  it.  In  re  Laney,  9 
Land  Dec.  83  (1889). 


318 


Watek  and  Mineral  Cases. 


[Alaska 


with  the  recorder  of  the  district  in  which  the  claim  lies  within  ninety 
days  from  the  date  of  the  discovery  of  the  claim,  but  did  not  make  a 
discovery  of  mineral  on  or  within  the  exterior  boundaries  of  the  claim, 
such  as  would  justify  a  man  of  ordinary  prudence,  not  necessarily  a 
skilled  miner,  in  the  expenditure  of  his  time  and  money  in  the  develop- 
ment of  the  property,  then  you  should  consider  the  fourth  question  of 
this  case,  namely,  that  of  possession. 

You  are  instructed  that  a  qualified  locator  shall  mark  the  boundaries 
of  a  placer  mining  claim  upon  the  ground,  so  that  the  same  could  be 
readily  traced,  as  heretofore  explained  to  you,  and  shall  record  his  notice 
of  location  as  heretofore  explained  to  you,  and  shall  enter  into  the  actual 
possession  of  the  claim  for  the  purpose  of  making  a  discovery  of  mineral 
thereon,  so  long  as  he  remains  in  the  actual  possession  of  the  claim,  and 
is  engaged,  in  good  faith,  in  the  labor  of  making  a  discovery,  he  is  en- 
titled to  the  protection  of  the  law.  You  are  instructed  that  in  this  case 
if  you  find  and  believe  from  a  fair  preponderance  of  the  evidence  that 


As  to  mining  location  not  being  af- 
fected   by    subsequent    town-site    patent, 

see  note  to  Golden  v.  Murphy,  p.  , 

vol.  3,  this  series. 

As  to  effect  of  town-site  patent  on 
mining  location,  and  authority  of  land 
office  department,  see  note  to  Butte  City 
Smoke  House  Lode  Cases,  post,  p.   520. 

H.     On  Boundary  of  Claim. 

A  discovery  shaft  partly  on  hostile 
ground  does  not  invalidate  the  claim  if 
it  shows  mineral  within  the  boundaries 
of  the  claim  to  which  it  relates.  Healey 
v.  Rupp,  28  Colo.  102,  63  Pac.  319,  21 
Mor.  Min.  R.    (1900). 

That  a  portion  of  the  discovery  is 
situated  upon  an  adjoining  claim  will 
not  render  a  location  based  thereon  in- 
valid. Upton  v.  Larkin,  7  Mont.  449,  17 
Pac.  728    (1888). 

Where  the  discovery  shaft  is  on  the 
line  of  the  claim,  thus  partly  on  and 
partly  off  the  clear  ground,  the  location 
will  be  sustained.  Upton  v.  Larkin,  7 
Mont.  449,  17  Pac.  728,  15  Mor.  Min.  R. 
404    (1888). 

The  fact  that  the  discovery  shaft  is 
partially  within  the  boundaries  of  an  ad- 
joining claim  is  of  no  consequence,  pro- 
vided that  portion  within  the  boundaries 


of  the  location  is  of  such  dimensions  as 
that  it  was  in  reality  a  shaft  sunk  upon 
that  ground,  a  shaft  large  enough  so 
that  a  miner  could  work  in  that  portion 
included  within  the  location  sought  to 
be  based  thereon.  Nichols  v.  Williams, 
38  Mont.  552,  100  Pac.  969    (1909). 

A  discovery  shaft  sunk  so  that  one 
of  the  end  lines  of  the  claim  ran  through 
it  is  sufficient  to  support  a  location,  and 
said  location  cannot  be  impaired  by  a 
subsequent  location  which  overlaps  the 
former  and  includes  the  discovery  shaft. 
Tiggeman  v.  Mrzlak,  40  Mont.  19,  105 
Pac.  77    (1909). 

I.      Within    Another   Claim. 

A  location  cannot  be  based  upon  a  dis- 
covery shaft  situated  upon  a  claim  pre- 
viously located.  Gwillim  v.  Donnellan, 
115  U.  S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed. 
348  (1884);  Little  Pittsburg  Consol. 
Min.  Co.  v.  Amie  Min.  Co.,  5  McC.  298, 
17  Fed.  57  (1883)  ;  Erwin  v.  Perigo,  93 
Fed.  608,  35  C.  C.  A.  482  (1899),  affirm- 
ing 85  Fed.  904  (1898);  Crown  Point 
Min.  Co.  v.  Buck,  97  Fed.  463,  38  C.  C. 
A.  278  (1899)  ;  Branagan  v.  Dulaney,  2 
Land  Dec.  744  (1884)  ;  In  re  Williams, 
20  Land  Dec.  458    (1895). 


1905-1906] 


Chaelton  v.  Kelly. 


319 


at  the  time  the  defendant  James  Kelly  attempted  to  initiate  his  mining 
location,  on  the  26th  day  of  June,  1905,  and  at  the  time  of  his  entry 
upon  the  ground  on  July  1,  1905,  the  plaintiffs  in  this  case  personally, 
or  by  their  agents  or  servants,  were  in  the  actual  possession  of  the  ground 
in  dispute,  and  were  actually  in  good  faith  engaged  in  the  development 
thereof,  and  seeking  to  make  a  discovery  of  gold  and  other  mineral 
thereon,  then,  although  they  had  not  then  made  a  discovery  of  gold,  they 
were  entitled  to  the  possession  of  the  ground,  and  had  such  a  legal  estate 
therein  as  would  justify  them,  by  reason  of  such  actual  possession  and 
labor,  to  a  verdict  in  this  case.  And  you  are  further  instructed  that  if 
you  shall  find  and  believe  from  the  evidence  in  this  case  that  on  the  26th 
day  of  June,  1905,  when  the  defendant  first  attempted  to  initiate  his 
claim  to  the  ground  in  dispute,  and  on  July  1,  1905,  when  he  entered 
into  possession  thereof,  the  plaintiffs  were  not  in  actual  possession  of 
the  ground  in  dispute,  and  were  not  then  actually  and  in  good  faith  en- 
deavoring to  develop  the  same,  and  to  make  a  discovery  of  gold  thereon, 


A  location  based  upon  a  discovery 
made  within  the  limits  of  another  exist- 
ing valid  location,  is  void.  Tuolumne 
Consol.  Min.  Co.  v.  Maier,  134  Cal.  583, 
66  Pac.  863  (1901)  ;  Michael  v.  Mills,  22 
Colo.  439,  45  Pac.  429  (1896)  ;  Sullivan 
v.  Sharp,  33  Colo.  346,  80  Pac.  1054 
(1905)  ;  Sierra  Blanca  Min.  &  Reduction 
Co.  v.  Winchell,  35  Colo.  13,  83  Pac.  628 
(1905);  McPherson  v.  Julius,  17  S.  D. 
98,  95  N.  W.  428   (1903). 

Where  discovery  is  made  within  the 
limits  of  a  located  claim,  before  it  can 
avail  the  discoverer  anything  it  must 
appear  that  the  lode  or  vein  discovered 
is  entirely  separate  and  distinct  from 
that  upon  which  the  prior  location  is 
based.  Atkins  v.  Hendree,  1  Idaho  95' 
(1867). 

The  discovery  must  be  made  upon  un- 
occupied land  and  upon  the  ground  lo- 
cated. A  discovery  made  upon  land 
located  is  not  sufficient  as  the  basis  of 
another  location.  The  Golden  Terra  Min. 
Co.  v.  Mahler,  4  Pac.  Coast  L.  J.  405, 
4  Mor.  Min.  R.  390  (Dist.  Ct.  Dakota, 
1879)  ;  McKinstry  v.  Clark,  4  Mont.  370, 
1  Pac.  759  (1882)  ;  Upton  v.  Larkin,  5 
Mont.  600,  6  Pac.  66   (1885). 

Discovery  made  within  boundaries  of 
an  adjoining  prior  location  is  void,  and 


will  not  sustain  a  location.    Tiggeman  v. 
Mrzlak,  40  Mont.  19,  105  Pac.  77  (1909). 

Discoveiy  made  within  the  limits  of 
an  existing  valid  location  is  void,  and 
not  sufficient  as  the  basis  of  a  location. 
Watson  v.  Mayberry,  15  Utah  265,  49 
Pac.  479  (1897)  ;  Reynolds  v.  Pascoe,  24 
Utah  219,  66  Pac.  1064  (1901);  Lock- 
hart  v.  Farrell,  31  Utah  155,  86  Pac. 
1077   (1906). 

Where  a  location  is  void  by  reason  of 
the  discovery  upon  which  it  was  based 
having  made  upon  a  valid  location,  it  is 
not  validated  by  the  abandonment  of  the 
location  upon  which  the  discovery  was 
made.  Lockheart  v.  Farrell,  31  Utah 
155,  86  Pac.  1077    (1906). 

No  location  can  be  made  based  upon  a 
discovery  or  staking  upon  ground  cover- 
ed by  existing  unexpired  and  unaban- 
doned  location.  In  re  Haight  et  al.,  Ont. 
Min.  Com.  Cas.  32    (1906). 

A  staking  upon  an  original  discovery 
by  a  party  other  than  the  original  dis- 
coverer, without  any  new  or  further  dis- 
covery of  his  own,  is  invalid.  In  re  Mc- 
Neil et  al.,  Ont.  Min.  Com.  Cas.  262 
(1908),  17  O.  L.  R.  621,  13  O.  W.  R.  6 
(1908). 

A  mining  claim  cannot  be  based  upon 
discovery  made  upon  ground  covered  by 


320 


Water  and  Mineral  Cases. 


[Alaska 


but  that  on  July  I,  1905,  the  defendant  James  Kelly  entered  peaceably 
and  without  force  or  violence,  and  that  the  ground  was  then  unoccupied 
and  vacant,  you  are  instructed  that  the  plaintiffs  would  not  be  entitled 
to  recover  by  reason  of  any  alleged  prior  actual  occupation  of  the  ground, 
and  you  should  find  for  the  defendants  upon  that  question. 

You  are  further  instructed,  however,  that  where  a  prospector  has 
marked  the  boundaries  and  recorded,  as  heretofore  I  have  instructed 
you,  and  is  in  actual  possession,  and  in  good  faith  attempting  to  comply 
with  the  mining  laws  in  the  matter  of  making  a  discovery,  and  has  in 
good  faith  temporarily  gone  away  from  his  claim  for  the  purpose  of 
purchasing  provisions  or  supplies,  or  for  any  other  temporary  purpose, 
and  intending  to  return  and  resume  his  actual  occupation,  possession, 
and  labors,  then  I  instruct  you  that  such  a  temporary  absence  is  not  to 
be  considered  an  abandonment  of  his  rights  to  the  ground,  and  you  are 
instructed  that  any  one  who  should  enter  upon  his  ground  during  such 
temporary  absence  could  not  initiate  any  right  thereto.  You  are  instructed 


an  existing  claim.  In  re  Sinclair,  Ont. 
Min.  Com.  Cas.  179  (1908). 

A  discovery  cannot  be  appropriated 
while  a  staking  by  the  original  dis- 
coverer exists  and  he  is  prosecuting  pro- 
ceedings to  complete  the  recording  of  his 
claim.  In  re  Wright  et  al.,  Ont.  Min. 
Com.  Cas.  373    (1909). 

As  to  claim  in  actual  possession  of 
prospector  cannot  be  located  by  another, 
see  paragraph  VI  of  note  to  Dwinnell  v. 
Dyer,  p.  ,  vol.  3,  this  series, 

VIII.      Effect  of  Loss  of  Discovery. 

A.      In  General. 

The  loss  of  that  portion  of  the  ground 
whereon  the  discovery  is  situated  ren- 
ders the  location  invalid.  The  loss  of 
the  discovery  forfeits  the  claim.  Gwil- 
lim  v.  Donellan,  115  U.  S.  45,  5  Sup. 
Ct.  1110,  29  L.  Ed.  348  (1884);  Miller 
v.  Girard,  3  Colo.  App.  278,  33  Pac.  69 
(1893);  Armstrong  v.  Lower,  6  Colo. 
393  (1882);  Girard  v.  Carson,  22  Colo. 
345,  44  Pac.  508  (1896);  Watson  v. 
Mayberry,  15  Utah  265,  49  Pac.  479 
(1897);  but  if  the  ground  upon  which 
the  discovery  shaft  is  situated  has  been 
judicially  determined  to  belong  to  the 
applicant,  the  claim  is  not  vitiated. 
Mitchell    v.    Brovo,    27    Land    Dec.    40 


(1898);  nor  where  a  junior  locator  is 
permitted  to  obtain  a  patent  under 
agreement  that  he  will  convey  the 
ground  containing  the  discovery  shaft  to 
the  senior  locator.  In  re  Duxie  Lode,  27 
Land  Dec.  88    (1898). 

B.      By    Change    of    Boundaries. 

If  the  boundaries  of  a  claim  as  orig- 
inally located  are  changed  after  the  re- 
cording of  the  original  location  cer- 
tificate, so  as  to  leave  the  discovery  shaft 
outside,  the  validity  of  the  location  can- 
not be  sustained.  McGinnis  v.  Egbert, 
8  Colo.  41,  5  Pac.  652   (1884). 

Where  the  discoverer,  finding  his  loca- 
tion to  be  excessive,  draws  in  his  lines, 
and  in  so  doing  excludes  the  discovery 
shaft,  the  whole  claim  is  not  vitiated  if 
he  makes  another  discovery  before  the 
rights  of  third  parties  intervene. 
Waskey  v.  Hammer,  170  Fed.  31,  95  C. 
C.  A.  305   (1909). 

C.      By    Sale. 

Where  ground  has  been  properly  lo- 
cated, the  locator  may  sell  any  portion 
thereof,  and  the  fact  that  he  sells  the- 
portion  upon  which  the  discovery  shaft 
is  situated  will  not  preclude  him  from 
obtaining  a  patent  for  the  balance.    Lit- 


1905-1906] 


Charlton  v.  Kelly. 


321 


however  that  you  should  view  the  matter  of  the  absence  of  the  prior 
occupant  and  the  character  of  his  actual  occupancy  and  possession  with 
care  and  caution,  and  if  you  shall  find  and  believe  from  the  evidence  in 
this  case  that  the  plaintiffs,  by  themselves  or  their  agents,  were  not  in 
actual  possession  of  the  premises  in  dispute  in  good  faith,  and  had  not 
temporarily  left  the  same  in  good  faith,  but  were  merely  holding  the 
ground  by  reason  of  their  former  marking  and  recording  for  speculative 
purposes,"  and  without  being  in  the  actual  possession  thereof  in  good 
faith,  and  attempting  to  make  a  valid  discovery  of  mineral  thereon,  then 
you  should  find  against  them  upon  that  question;  but  if  you  shall  find 
that  they  had  previously  actually  made  a  discovery  as  defined  to  you,  or 
that  they  were  in  such  actual  possession  in  good  faith,  and  that  their 
absence  was  a  temporary  one  in  good  faith,  for  the  purpose  of  purchasing 
provisions  and  supplies,  with  an  honest  intention  to  return  to  the  ground 
and  resume  labor  thereon,  then  you  should  find  upon  that  question  for  the 

plaintiffs. 

You  are  instructed  that  in  considering  the  question  of  what  constitutes 
possession  you  should  consider  it  from  the  standpoint  of  the  ground. 
That  in  controversy  is  a  placer  mineral  claim.    If  it  were  a  homestead, 


tie  Pittsburgh  Consol.  Min.  Co.  v.  Amie 
Min.  Co.,  5  McC.  298,  17  Fed.  57  (1883). 
Where  land  is  located  by  several  par- 
ties as  an  association  claim  and  there- 
after a  particular  and  specific  part  there- 
of is  sold  to  a  third  party,  a  discovery 
made  by  such  party  upon  the  part  of  the 
property  so  conveyed  to  him  cannot  be 
held  to  redound  to  the  benefit  of  the  as- 
sociates who  have  parted  with  all  in- 
terest in  that  portion  of  the  property 
■where  the  discovery  is  made.  Merced  Oil 
Min.  Co.  v.  Patterson,  153  Cal.  624,  96 
Pac.  90  (1908). 

But  where  a  specific  part  of  an  as- 
sociation claim  is  sold  to  a  third  per- 
son, with  express  covenants  and  agree- 
ments that  any  work  done  or  discovery 
made  thereon  would  be  for  the  benefit  of 
all  the  associates  and  the  whole  claim, 
a  discovery  upon  the  portion  so  sold  will 
inure  to  the  benefit  of  all  the  associates 
and  the  whole  claim;  for  as  it  is  compe- 
tent for  the  locators  to  employ  a  third 
person  to  do  the  work  necessary  to  a 
discovery,  therefore  they  might  make 
such  agreement  with  the  person  to  whom 
W.    &   M—  21 


they  conveyed  a  certain  portion  of  the 
property.  Merced  Oil  Min.  Co.  v.  Patter- 
son, 153  Cal.  624,  96  Pac.  90   (1908). 

D.      By    Subsequent     Patent     to 
Another. 

Where  a  locator  permits  the  ground 
containing  his  discovery  shaft  to  be 
patented  to  an  adverse  party,  the  whole 
location  becomes  void.  Gwillim  v. 
Donnellan,  115  U.  S.  45,  5  Sup.  Ct.  1110, 
29  L.  Ed.  348   (1885). 

The  patenting  of  the  land  whereon  the 
discovery  shaft  is  situated  to  a  third 
person  lenders  the  location  void.  Girard 
v.  Carson,  22  Colo.  345,  45  Pac.  508 
(1896);  Miller  v.  Girard,  3  Colo.  App. 
278,  33  Pac.  69  (1893). 

Where  a  discovery  shaft  is  sunk  upon 
ground  which  is  thereafter  patented  to 
another  person,  the  whole  location  be- 
comes invalidated  unless  a  new  discovery 
shaft  be  sunk.  Girard  v.  Carson,  22 
Colo.  345,  44  Pac.  508,  18  Mor.  Min.  R. 
346   (1896). 

Where  that  part  of  the  land  claimed 
upon     which     the     discovery     shaft     is 


322 


Water  and  Mineral  Cases. 


[Alaska 


possession  would  be  shown  by  erecting  a  habitable  house,  by  fencing, 
plowing  the  land,  raising  crops,  and  other  acts  such  as  a  fanner  usually 
performs  under  similar  circumstances.  But  it  is  not  necessary  to  fence 
a  mining  claim,  to  plow  or  raise  crops  thereon.  A  placer  mining  claim 
in  this  camp  is  possessed  by  marking  the  boundaries,  recording,  and  mak- 
ing a  discovery  of  mineral,  by  sinking  holes  to  discover  the  pay-streak, 
by  hoisting  pay-dirt,  sluicing  and  cleaning  up.  Miners  sometimes  erect 
tents  or  houses  and  reside  on  the  claim,  but  such  acts  are  not  necessary  to 
constitute  a  legal  possession,  though  when  performed  in  addition  to  other 
acts  usually  done  in  mining  they  are  evidence  of  possession.  You  are  in- 
structed that  if  you  shall  find  from  the  evidence  in  this  case  that  during 
the  months  of  May  and  June,  till  June  26,  1905,  the  plaintiffs  by  their 
agent,  Kelsey,  actually  occupied  the  ground  in  controversy  in  this  action 
by  living  there  in  a  tent,  and  by  cooking  and  sleeping  thereon,  and  by 
working  in  good  faith  to  develop  the  claim  as  a  mining  claim,  and  by  sink- 
ing holes  thereon  to  discover  gold,  and  generally  in  doing  such  acts  as 
miners  under  such  circumstances  are  obliged  to  do  to  discover  gold  on  a 
claim  and  develop  it,  such  occupancy  and  labors  in  good  faith  would  con- 
stitute an  actual  possession. 


situated  was  excluded  from  the  claim  in 
favor  of  a  subsequent  locator,  and  there 
is  no  proof  of  a  discovery  on  the  ground 
within  the  claim,  the  location  is  insuffic- 
ient, and  will  not  support  an  application 
for  patent.  In  re  Antediluvian  Lode,  8 
Land  Dec.  602  (1889)  ;  In  re  Independ- 
ence Lode,  9  Land  Dec.  571  (1889);  In 
re  Lone  Dane  Lode,  10  Land  Dec.  53 
(1890). 

Where  the  discovery  is  situated  with- 
in ground  afterwards  patented  to  an- 
other locator,  the  whole  location  will  not 
be  held  void  if  a  discovery  has  been 
made  on  the  claim  outside  the  disputed 
ground.  It  will  be  held  valid  as  to  such 
portion  as  is  outside  the  conflicting  lo- 
cation. Perigo  v.  Erwin,  85  Fed.  904 
(1898)  ;  Silver  City  Gold  &  Silver  Min. 
Co.  v.  Lowry,  19  Utah  334,  57  Pac.  11 
(1899). 

E.      Discovery   on    Remainder. 

Where  the  portion  of  the  location  con- 
taining the  discovery  shaft  has  been  ex- 
cluded, a  discovery  must  be  shown  on  the 
remaining    portion    or    application    for 


patent    will   be    denied.      In    re    Cayuga 
Lode,  5  Land  Dec.  703    (1889). 

Where  part  of  a  claim  containing  the 
discovery  is  excluded,  there  must  be  a 
showing  of  mineral  in  the  remaining 
portion.  In  re  Cayuga  Lode,  5  Land 
Dec.  703  (1889);  In  re  Dane  Lode,  10 
Land  Dec.  53  (1890);  In  re  Antedilu- 
vian Lode,  8  Land  Dec.  602  (1889)  ;  In 
re  Independence  Lode,  9  Land  Dec.  571 
(1889);  In  re  Laney,  9  Land  Dec.  83 
(1889). 

IX.      By   Knowledge  and  Adoption. 

The  vein  must  be  known  by  the  loca- 
tor to  exist  at  the  time  of  making  his 
location,  but  it  is  not  necessary  that  he 
should  be  the  first  discoverer  thereof. 
Jupiter  Min.  Co.  v.  Bodie  Consol.  Min. 
Co.,  7  Sawy.  96,  11  Fed.  666,  4  Mor. 
Min.  R.  411    (1881). 

It  is  not  necessary  that  the  locator  of 
a  mining  claim  should  be  the  first  dis- 
coverer of  the  vein  or  lode  in  order  to 
make  a  valid  location.  It  is  sufficient  if 
it  be  clearly  shown  that  the  locator  knew 
at  the  time  of  making  his  location  that 


1905-1906] 


Chakltox  v.  Kelly. 


323 


But  you  are  instructed  that  merely  placing  a  tent  and  a  few  tools  and 
a  small  supply  of  provisions  upon  a  placer  mining  claim  do  not,  alone 
and  of  themselves. constitute  actual  possession  thereof;  and  if  you  shall 
find  and  believe  from  the  evidence  in  this  case  that  after  the  Kelsey  tent, 
tools,  and  provisions  were  thrown  off  the  Hill  claim  by  Jack  Pounder, 
the  same  remained  unused  and  scattered,  resting  upon  the  surface  of  the 
upper  half  of  the  Charlton  claim,  and  upon  that  portion  in  dispute  in 
this  action,  and  that  when  the  defendant  Kelly  entered  thereon  on  June 
26,  1905,  no  use  had  been  made  thereof  in  working  the  claim  or  in  de- 
veloping the  same,  or  seeking  to  use  it  as  a  mining  claim,  and  that  the 
tent  was  unoccupied,  or  only  so  occupied  casually,  and  not  for  the  pur- 
pose of  aiding  in  developing  the  mining  claim,  then  such  tools,  provis- 
ions, tent,  and  casual  occupancy  did  not  constitute  actual  possession  of 
the  placer  mining  claim  in  good  faith  under  the  law,  and  would  not  be 
such  an  actual  possession  as  would  justify  you  in  finding  on  that  point 
for  the  plaintiffs.  If  a  party  goes  upon  the  mineral  lands  of  the  United 
States,  and  either  establishes  a  settlement  or  works  thereon  without  com- 
plying with  the  requirements  of  the  mining  laws,  and  relies  exclusively 
upon  his  possession  or  work,  a  second  party,  who  locates  peaceably  a 
mining  claim  covering  any  portion  of  the  same  ground,  and  in  all  respects 
complies  with  the  requirements  of  the  mining  laws,  is  entitled  to  the 
possession  of  such  mineral  ground  to  the  extent  of  his  location  as  against 
the  prior  occupant,  who  is,  from  the  time  said  second  party  has  perfected 
his  location,  and  complied  with    the  law,  a  trespasser. 

You  are  instructed  that  a  mere  possession  of  a  piece  of  mining  ground 
is  only  good  as  against  an  intruder,  but  not  against  one  who  subse- 
quently located  the  same  in  compliance  with  the  mining  laws.  The  gov- 
ernment requires  something  more  from  one  who  seeks  to  acquire  mining 
ground  than  a  mere  occupancy  thereof  in  a  tent  with  his  tools  and  pro- 
visions; it  requires  work  in  developing  the  claim.  But  when  that  work 
has  proceeded  to  the  point  where  he  has  marked  the  boundaries  so  that 


there  had  been  a  discovery  of  a  vein  or 
lode  within  its  limits.  Book  v.  Justice 
Min.  Co.,  58  Fed.  106,  17  Mor.  Min. 
R.  617    (1893). 

Where  a  locator  attempts  to  adopt 
and  appropriate  a  prior  discovery  made 
by  another,  he  must  show  that  it  was 
known  to  him.  Nevada  Sierra  Oil  Co. 
v.  Home  Oil  Co.,  98  Fed.  673,  20  Mor. 
Min.  R.  283   (1899). 

The  way  in  which  knowledge  of  the 
mineral  in  the  claim  is  obtained  is  in- 


material.  Thus,  where  an  employee  as- 
certained that  his  employer  had  mined 
beyond  his  lines  into  vacant  ground,  it 
was  held  he  was  not  precluded  from  lo- 
cating a  claim  which  covered  such  work- 
ings. Thallman  v.  Thomas,  111  Fed. 
277,  49  C.  C.  A.  317  21  Mor.  Min.  R. 
573    (1901). 

A  discovery  may  be  made  by  one  party 
and  subsequently  by  another,  and  in 
such  event  the  first  discoverer  obtains 
no  rights  if  he  fails  to  make  a  valid  lo- 


324 


Water  and  Mineral  Cases. 


[Alaska 


they  can  be  readily  traced,  has  recorded  his  location  notice,  and  made  a 
discovery  of  mineral  thereon,  as  I  have  heretofore  instructed  you,  it  is 
sufficient  work  to  perfect  his  location ;  but  until  those  three  acts  are  con- 
summated, the  possession,  to  exclude  other  prospectors,  must  be  actual, 
continuous,  and  in  good  faith,  subject,  of  course,  to  reasonable  absences 
for  the  purpose  of  renewing  the  miner's  supplies,  or  otherwise  aiding 
him  in  his  work  of  development.  But  if,  even  being  in  possession,  he 
stands  by  and  allows  others  to  enter  upon  his  claim,  peaceably  and  with- 
out violence,  and  makes  no  effort  to  continue  his  work,  and  the  subsequent 
prospector  complies  with  the  law  by  marking  and  recording,  and  first 
discovers  mineral  on  the  ground,  the  law  gives  such  first  discoverer  a  title 
to  the  claim  and  mineral  thereon,  against  which  the  mere  possession  of 
the  surface  cannot  prevail;  and  if  you  shall,  from  the  evidence  in  this 
case,  so  find  the  facts  to  be,  then  your  verdict  on  that  point  should  be  for 
the  defendants  and  against  the  plaintiffs. 

If  you  shall  find  and  believe  from  the  evidence  in  this  case  that  the 
plaintiffs  had  not,  prior  to  the  entry  of  the  defendant  Kelly  on  the  area 
of  ground  in  dispute,  made  a  discovery  of  gold  sufficient  to  satisfy  the 
law,  then  I  instruct  you  that,  to  exclude  the  defendant  Kelly  from  a 
peaceable  entry  upon  the  ground  to  locate  it  as  a  mining  claim,  the  plain- 
tiff's possession  must  have  been  actual,  by  the  presence  of  themselves  or 
agents  on  the  ground,  in  good  faith  seeking  to  develop  it  by  making  a 
discovery  of  mineral  thereon.  Mere  casual  visits  to  the  ground  by  Kel- 
sey,  plaintiffs'  agent,  and  the  leaving  upon  the  ground,  unused,  of  a  tent, 
tools,  and  provisions,  would  not  be  such  actual  possession  as  would  ex- 
clude the  peaceable  entry  of  defendant,  and  if  you  so  find  the  facts  from 
the  evidence  in  this  case  you  should  find  against  the  plaintiffs  on  that 
point. 


cation  and  the  second  discoverer  does 
make  such  location.  Willeford  v.  Bell 
(Cal.),  49  Pac.  6  (1897;  not  officially 
reported)  ;  Conway  v.  Hart,  129  Cal. 
480,  62  Pac.  44   (1900). 

While  technically  the  finding  of  a 
vein  in  the  discovery  shaft  of  an  aban- 
doned claim  may  not  constitute  a  dis- 
covery, a  valid  relocation  may  be  made 
under  the  Colorado  Statute,  by  one  find- 


ing such  vein.  Armstrong  v.  Lower,  6 
Colo.  393,  15  Mor.  Min.  R.  631  (1882). 
Mere  knowledge  of  a  former  discovery 
is  insufficient.  In  order  to  avail  him  it 
must  be  adopted  by  the  locator  as  his 
discovery,  upon  which  he  bases  his  loca- 
tion. McMillen  v.  Ferrum  Min.  Co.,  32 
Colo.  38,  74  Pac.  461,  105  Am.  St.  Rep. 
64    (1903). 


1911] 


ElSCH  ET  AL.  V.  BUKCH. 


325 


RISCH  et  al.  v.  BTTRCH. 

[Supreme  Court  of  Indiana,  May  23,   1911.] 

—  Ind.  — ,  95  N.  E.  123. 

1.  Injunction — Threatened  Oil  Well  Enjoined. 

A  bill  to  quiet  title  alleging  in  addition  that  the  defendants  have  entered  upon 
the  land  with  a  drilling  rig  and  are  threatening  to  drill  for  oil  is  sufficient  to 
warrant  a  temporary  injunction  against  such  trespass. 

2.  Same — Temporary  Injunction — Sufficiency  of  Complaint. 

On  appeal  from  an  interlocutory  order  granting  a  temporary  injunction,  the  suf- 
ficiency of  the  complaint  will  not  be  subjected  to  any  technical  tests  when  questioned 
first  in  the  supreme  court. 

3.  Same — Temporary  Injunction   Discretionary. 

The  granting  of  a  temporary  injunction  to  maintain  the  status  quo  until  final 
hearing,  rests  in  the  sound  discretion  of  the  trial  court  and  will  be  justified  where 
the  evidence  shows  a  case  worth  investigating. 

4.  Forfeitures — Oil   and   Gas   Contracts. 

Oil  and  gas  leases  or  contracts  are  not  subject  to  the  rule  that  forfeitures  are 
not  favored,  and  provisions  looking  towards  a  forfeiture  are  generally  held  to  be  for 
the  benefit  of  the  landowner  and  clearly  enforceable. 

5.  Oil   and  Gas  Contract  Construed — Mere  Option. 

An  oil  and  gas  contract  providing  that  in  case  no  well  is  commenced  within  120 
days  the  grant  shall  become  void  unless  the  operator  shall  pay  $20  each  month 
thereafter  delayed,  held  not  to  constitute  a  lease  but  to  be  a  mere  option  for  ex- 
ploration, subject  to  expiration  upon  failure  to  pay  in  advance. 

Appeal  from  Circuit  Court,  Pike  County;  John  L.  Bretz,  Judge. 

Action  to  quiet  title  and  for  injunction  by  Amos  Burch  against  Henry 
Risch  and  others.  Temporary  injunction  granted.  Defendants  appeal. 
Affirmed. 

For  appellants — Samuel  Emison,  Leroy  Wade  and  Robinson  &  Stil- 
well. 

For  appellee — Wilson  &  Brumfield  and  Richardson  &  Taylor. 

COX,  J.  This  is  an  appeal  from  an  interlocutory  order  granting 
a  temporary  injunction  to  appellee  restraining  appellants  from  drilling 
an  oil  or  gas  well  on  the  lands  of  appellee  until  the  final  hearing  of  the 
cause  instituted  by  him  against  them  to  quiet  his  title  to  such  lands,  and 


NOTE. 

As  to  the  vesting  of  title  under  an 
oil  lease  being  contingent  upon  the  dis- 


covery of  oil,  see  note  to  Steelsmith  v. 
Gartlan  et  al.,   19  Mor.  Min.   Rep.  315. 


326  Water  and  Mineral  Cases.  [Indiana 

for  a  permanent  injunction.  The  cloud  on  his  title  against  which  appellee 
is  seeking  relief  grows  out  of  a  contract  between  appellee  and  appellant?; 
for  the  exploration  of  appellee's  lands  for  oil  and  gas  by  appellants. 

The  assignments  of  error  deny  both  the  sufficiency  of  the  complaint 
and  the  evidence  to  sustain  the  action  of  the  trial  court  in  granting  the 
temporary  injunction.  The  complaint,  the  sufficiency  of  which  is  ques- 
tioned first  in  this  court,  contains  all  of  the  allegations  necessary  to  make 
a  good  short-form  complaint  to  quiet  title  to  real  estate,  and  is  admittedly 
good  to  secure  that  relief  as  against  a  demurrer  for  want  of  facts.  To 
these  allegations  are  added  the  following:  "That  said  defendants  have 
unlawfully  entered  upon  said  land  with  what  is  known  as  drilling  rig,  or 
outfit,  and  placed  the  same  in  position  thereon  for  the  purpose  of  drilling 
an  oil  and  gas  well  on  said  land,  and  are  intending  and  threatening  to 
drill  such  well  thereon  and  will  so  drill  same,  unless  restrained  from  so 
doing."  The  conclusion  is  a  prayer  for  an  order  restraining  defendants 
pending  the  hearing,  and  for  a  perpetual  injunction  and  the  quieting  of  the 
plaintiff's  title  as  final  relief.  The  time  of  the  hearing  for  the  temporary 
injunction  was  agreed  upon  and  the  matter  was  submitted  to  the  trial 
judge  upon  the  verified  complaint  and  evidence  from  both  sides. 

It  appears  that  the  appellee,  then  the  owner  and  in  possession  of  the 
real  estate  in  controversy,  consisting  of  forty  acres,  in  Pike  County,  on 
December  15,  1909,  entered  into  a  contract  with  appellants  for  the  explora- 
tion of  the  land  for  oil  and  gas.  This  memorandum  of  agreement,  as  it 
is  designated  therein,  omitting  certain  wholly  immaterial  parts,  reads  as 
follows :  "That  the  said  party  of  the  first  part,  for  and  in  the  considera- 
tion of  the  sum  of  forty  (S40.00)  dollars  in  hand  paid,  the  receipt  of 
which  is  hereby  acknowledged,  and  of  the  covenants  and  agreements 
hereinafter  contained,  hereby  grant  and  convey  to  the  said  party  of  the 
second  part,  all  of  the  oil  and  gas  in  and  under  the  following  described 
premises,  together  with  the  exclusive  right  to  enter  thereon  at  all  times 
for  the  purpose  of  drilling  and  operating  thereon,  and  of  producing  there- 
from said  oil  and  gas,  and  to  erect  and  maintain  all  buildings  and  struc- 
tures and  to  lay  and  maintain  all  surface  rods  and  pipes  necessary  for 
the  production  or  transportation  of  oil  and  gas  to,  from  or  upon  such 
premises  as  may  be  operated  by  said  second  party.  Excepting  and  re- 
serving, however,  to  the  party  of  the  first  part  the  one-eighth  (}i)  part 
of  all  oil  produced  and  saved  from  said  premises  hereinafter  described, 
to  be  delivered  in  pipe  line  or  tank  with  which  second  party  may  connect 
said  wells,  namely:  [Here  follows  a  description  of  the  premises.]  Tc 
have  and  to  hold  the  above-described  premises  for  a  period  of  one  year 
from  the  date  hereof  and  as  much  longer  as  gas  and  oil  is  found  in  paying 
quantities  on  said  premises  or  the  rentals  paid  as  herein  provided  for, 


1911]  RlSCH  ET  AL.  v.  Burch.  327 

upon  the  following  conditions :  If  gas  only  is  found,  second  party  agrees 
to  pay  first  party  two  hundred  dollars  each  year  for  the  gas  from  each 
well  while  the  same  is  being  marketed  off  the  premises,  the  first  party  to 
have  the  gas  free  of  cost  to  heat  all  stoves  and  light  and  jets  in  dwelling 
house  on  said  premises  during  the  same  time.  *  *  *  In  case  no  well 
is  commenced  on  said  premises  within  120  days  from  this  date,  then  this 
grant  shall  become  null  and  void  unless  second  party  shall  thereafter 
pay  the  first  party  at  rate  of  twenty  ($20.00)  dollars  each  month  there- 
after such  commencement  is  delayed,  payment  to  be  made  by  depositing 
the  amount  thereof  in  First  Nat.  Bank  of  Winslow  or  by  check  delivered 
to  the  first  party." 

It  is  conceded  that  no  well  was  begun  within  120  days  from  the  date 
of  the  agreement,  December  15,  1909,  and  that  nothing  was  done  to- 
wards doing  so  within  that  time.  Thereafter  the  evidence  warrants  the 
statement  that  on  or  before  May  15,  19 10,  appellants  paid  to  appellee  $20 
on  the  contract,  and  on  or  before  June  15th  another  $20;  that  no  further 
payments  were  made  to  appellee,  and  that  no  deposits  were  made  in  the 
First  National  Bank  of  Winslow  by  appellants  for  him;  that  as  late  as 
July  18th,  appellee,  not  having  received  additional  payments,  went  to 
the  Winslow  bank  and  found  no  money  from  appellants  there  for  him ; 
that  on  July  19th,  after  finding  no  money  in  the  bank  for  him,  appellee 
made  a  tentative  agreement  with  another  person  for  the  oil  and  gas  rights 
in  his  land  on  more  favorable  terms,  and  on  that  day  notified  appellants 
that  their  rights  therein  were  at  an  end ;  that  the  following  day  appellee 
closed  his  tentative  agreement  with  the  third  party,  and  received  among 
other  more  favorable  considerations  for  the  oil  and  gas  rights  in  his 
land  a  large  cash  payment;  that  appellants,  still  asserting  the  existence 
of  their  rights  under  the  agreement,  sent  a  check  to  the  Winslow  bank 
for  appellee  July  19th,  and  on  July  21st  they  moved  a  drill  rig  on  the 
land  preliminary  to  carrying  out  the  expressed  intention  of  drilling  a  gas 
and  oil  well  thereon,  and  this  was  the  first  move  they  had  made  to  carry 
out  their  implied  agreement  to  make  exploration  of  appellees'  land.  This 
action  was  begun  July  2"],  1910. 

While  it  is  not  contended  by  counsel  for  appellants  that  the  com- 
plaint is  lacking  in  any  essential  averment  to  make  it  good  to  quiet  title, 
it  is  earnestly  contended  that  it  does  not  contain  sufficient  allegations  to 
authorize  the  granting  of  a  temporary  injunction.  That  ancillary  injunc- 
tive relief  may  be  granted  to  prevent  a  trespass  to  land  in  aid  of  a  plain- 
tiff in  possession  in  an  action  to  protect  his  possession  or  to  quiet  his  title, 
where  the  objective  of  the  trespass  is  to  remove  a  part  of  the  substance 
of  the  inheritance,  cannot  be  doubted.  Such  relief  has  been  granted  to 
prevent  the  removal  of  trees,  coal,  valuable  ores,  asphaltum,  stone,  and 
clay.     Thomas  v.  Oakley,  18  Ves.  Jr.  184;  Bates  v.  Slade,  76  Ga.  50; 


328  Water  and  Mineral  Cases.  [Indiana 

Leake  v.  Smith,  76  Ga.  524;  More  v.  Massini,  32  Cal.  590.  That  such 
a  relief  should  be  granted  against  a  threatened  trespass  the  purpose  of 
which  is  the  removal  of  oil  and  gas  underlying  the  surface  would  seem 
to  be  still  clearer  for  obvious  reasons  based  on  their  peculiar  nature. 

The  charge  in  the  complaint  that  appellants  had  unlawfully  en- 
tered upon  the  lands  of  appellee  with  a  drilling  rig,  and  had  placed  the 
same  in  position  thereon  for  the  purpose  of  drilling  an  oil  and  gas  well 
on  the  land,  and  were  intending  and  threatening  to  drill  the  well,  and 
would  do  so  unless  restrained,  necessarily  includes  the  purpose  on  the 
part  of  the  appellants  to  remove  from  the  depths  of  the  land  any  oil  and 
gas  which  might  be  discovered. 

On  appeal  from  an  interlocutory  order  granting  a  temporary 
injunction,  the  question  of  the  sufficiency  of  the  complaint  is  not  deeply 
involved,  and  it  will  not  be  subjected  to  any  technical  tests  when  ques- 
tioned for  the  first  time  in  this  court.  The  granting  of  a  temporary  injunc- 
tion to  maintain  the  status  quo  until  the  final  hearing  rests  in  the  sound 
discretion  of  the  trial  court,  and  this  discretion  will  not  be  interfered 
with  on  appeal  unless  it  is  made  to  appear  that  the  court's  action  was  arbi- 
trary or  a  clear  abuse  of  the  discretion  vested  in  it.  The  rule  is  that, 
to  authorize  the  court  to  grant  such  relief,  it  is  not  necessary  that  a 
case  shall  be  made  out  that  will  entitle  the  plaintiff  to  relief  at  all  events  at 
the  final  hearing.  It  is  enough  if  the  court  finds  upon  the  pleadings  and 
the  evidence  a  case  which  makes  the  transaction  a  proper  subject  for  in- 
vestigation in  a  court  of  equity.  Spicer  v.  Hoop  (1875),  51  Ind.  365;  Peo- 
ple's Gas  Co.  v.  Tyner  (1891),  131  Ind.  277,  31  N.  E.  59,  16  L.  R.  A. 
443,  31  Am.  St.  Rep.  433;  Home,  etc.,  Co.  v.  Globe,  etc.,  Co.  (1896), 
146  Ind.  673,  45  N.  E.  1 108;  Gagnon  v.  French  Lick,  etc.,  Co.  (1904),  163 
Ind.  687,  72  N.  E.  849,  68  L.  R.  A.  175 ;  City  of  Laporte  v.  Scott  (1905), 
166  Ind.  78,  76  N.  E.  878. 

Counsel  for  both  appellants  and  appellee  discuss  the  proper  construction 
of  the  contract  for  gas  and  oil  privileges  involved  in  this  case  as  con- 
trolling the  question  of  the  validity  of  the  order  granting  the  temporary 
injunction,  and  it  is  true  that  upon  that  construction  the  ultimate  right 
of  appellee  to  succeed  in  his  action  depends,  but  it  does  not  necessarily 
follow  that  the  propriety  of  granting  the  temporary  injunction  depends 
on  appellee's  ultimate  right  to  recover.  The  parties  herein  are  at  issue 
upon  a  question  of  legal  rights,  and  it  was  fairly  necessary  in  justice  to 
both  for  the  court  to  preserve  their  rights  in  statu  quo  until  those  rights 
could  be  finally  determined.  It  rested  in  the  court's  discretion  to  con- 
sider the  relative  harm  and  benefit,  convenience  and  inconvenience  which 
might  result  to  the  parties  from  granting  or  withholding  the  writ  and  to 
determine  that  appellee  would  suffer  greatest  injury  and  inconvenience 
from  the  court's  inaction.     High  on  Injunctions    (4th  Ed.)    §    13.     It 


1911] 


ElSCH  ET  AL.  V.  BURCH.  329 


cannot  be  said  that  the   facts  involved  would  not  have  sustained  the 
court's  action  even  without  a  construction  of  the  contract  favorable  to 

appellee. 

But  counsel  on  both  sides  treat  the  construction  of  the  contract  as 
involved,  it  being  contended  on  the  part  of  the  appellants  that  the  monthly 
payment's  of  $20  were  to  be  considered  rent  which,  to  save  appellants' 
rights,  need  not  necessarily  be  paid  until  the  end  of  the  year,  or,  at  most,  at 
the  end  of  each  month;  while  for  appellee  the  contention  is  that  under 
the  authority  of  Dill  v.  Fraze  (1907),  169  Ind.  53,  79  N.  E.  971,  these 
payments  must  be  held  to  be  payable  in  advance,  and,  as  there  was  a 
failure  to  pav,  it  was  the  right  of  the  appellee,  appellants  not  having  taken 
any  steps  to  drill  a  well,  to  declare  a  forfeiture.  To  save  further  conten- 
tion we  decide  the  question.     We  think  the  contention  of  appellee  must 

prevail. 

Oil  and  gas  leases   or  contracts   are  in  a  class  by  themselves,  and 
the  ordinary  rule  that  forfeitures  are  not  favored  does  not  apply  with 
full  force  to  them  if  at  all.     The  provisions  for  a  forfeiture  usually  found 
in  them  are  generally  held  to  be  for  the  benefit  of  the  landowner  and 
clearly  enforceable  by  him  where  the  lessee  has  done  nothing  to  carry  out 
the  purpose  of  exploration,  and  has  failed  to  make  payments  for  the  right 
to  do  so.     In  Ohio  Oil  Co.  v.  Detamore  (1905),  165  Ind.  243-249,  73  N- 
E.  906,  in  speaking  of  a  similar  contract,  the  court  said:     "In  this,  as 
in  other  contracts  of  its  class,  the  manifest  purpose  of  the  parties  was 
exploration,  and  the  mining  of  oil  and  gas.     But  here,  to  say  the  most 
of  it   the  grant  is  inchoate,  and  not  absolute.     It  purports  upon  its  face 
to  grant  all  the  oil  and  gas  under  the  land,  but  in  effect  provides  that,  in 
consideration  of  $120,  the  grantee  shall  have  six  months  in  which  to  decide 
whether  it  will  accept  the  grant  by  entering  into  possession  and  beginning 
the  work  of  exploration.     Viewed  from  end  to  end,  the  contract  amounts 
to  nothing  more  or  less  than  a  six-months  option  whereby  the  grantor 
bound  himself  not  to  lease  the  premises  to  another,  and  to  give  the  grantee 
that  length  of  time  to  consider  and  determine  whether  it  would  undertake 
the  development  of  the  land  upon  the  terms  named.     If  the  grantee  had 
decided  in  the  affirmative,  and  had  entered  upon  the  land,  and  proceeded 
with  the  execution  of  the  contract,  and  completed  a  well  within  the 
option  period,  then  acceptance  would  have  been  complete,  and  the  grant 
effective."     In  Dill  v.  Fraze,  supra,  a  suit  to  cancel  a  gas  lease,_it  was 
said  •     "The  agreement  contains  an  express  provision  for  a  forfeiture  if 
a  well  is  not  completed  within  60  days,  unless  the  second  party  thereafter 
pavs  at  the  rate  of  $40  per  year  for  each  year  such  completion  is  delayed. 
The  unit  of  payment  was  $40,  and  the  question  arises  whether  such  pay- 
ment was  to  be  made  in  advance.     While  the  ordinary  rule  governing 
rentals  is  that  payment  in  advance  is  not  required,  unless  so  stipulated 


330  Water  and  Mineral  Cases.  [Indiana 

in  the  contract,  yet,  as  the  endeavor  of  the  courts  in  the  enforcement  of 
agreements  is  to  effectuate  the  intent  of  the  makers,  we  are  of  opinion  that 
in  the  circumstances  of  this  case  it  should  be  held  that  it  was  the  pur- 
pose of  the  parties  that  payment  should  be  made  in  advance.  *  *  *  The 
contract  before  us  distinctly  contemplates  that  a  forfeiture  should  result 
at  the  end  of  sixty  days  (a  well  not  being  then  completed),  unless  the 
operator  should  pay  the  consideration  for  delay.  This  plainly  required 
him  to  become  an  actor  if  he  would  save  his  rights.  In  such  a  case  the 
owner  has  the  privilege  of  declaring  the  lease  forfeited  at  the  end  of  said 
time,  except  as  the  other  party  pays  the  sum  stipulated  for  the  delay."  It 
is  further  held  in  Ohio  Oil  Co.  v.  Detamore,  supra,  that  the  failure  of  the 
lessee  to  make  payments  provided  to  extend  the  time  for  drilling  similar 
to  the  monthly  payments  of  $20  each  provided  in  the  contract  in  suit  for 
that  purpose  brought  the  option  to  an  end. 

The  contract  in  the  case  before  us  contains  no  express  covenant 
on  the  part  of  appellants  to  be  performed  by  them  prior  to  such  time  as 
they  might  discover  oil  or  gas.  They  do  not  expressly  agree  to  drill  a 
well,  nor  do  they  promise  to  pay  the  designated  $20  per  month  in  advance 
or  at  any  time.  And,  taking  into  consideration  the  situation  of  the  parties 
and  the  subject-matter  of  the  contract,  we  are  constrained  to  hold  on  the 
authority  of  the  cases  last  above  cited  that  the  contract  in  the  case  under 
consideration  did  not  create  the  relation  of  landlord  and  tenant,  but  was 
a  mere  option  granted  to  appellants  by  appellee,  for  a  valid  consideration, 
for  the  exclusive  right  to  explore  his  land  for  oil  and  gas  which  by  its 
very  terms  was  to  expire  by  the  inaction  of  appellants  at  the  end  of  120 
days  ;  that  by  the  payment  of  $20  "each  month  thereafter"  appellants  could 
procure  the  extension  of  the  option  for  a  month  at  a  time;  that  these 
payments  were  to  be  made  in  advance ;  and  that,  upon  the  failure  of  the 
appellants  to  act  either  by  beginning  a  well  or  making  a  payment,  appellee 
had  the  right  to  declare  their  rights  under  the  contract  at  an  end. 

The  120  days  from  the  date  of  the  contract  ended  with  the  14th  day  of 
April,  1910.  Two  monthly  payments  of  $20  each  were  made  by  appel- 
lants, and,  treating  the  monthly  payments  as  being  required  to  be  paid  in 
advance,  appellants  were  delinquent  in  two  payments  when  appellee  gave 
them  notice  that  their  rights  were  forfeited.  As  said  in  Dill  v.  Fraze, 
supra,  at  page  58:  "There  is  little  or  no  reason  for  the  interference  of  a 
court  of  equity  to  prevent  a  forfeiture  before  operations  have  begun, 
where  the  operator  has  sinned  away  his  opportunity  under  the  contract. 
The  wandering  and  vagrant  character  of  oil  and  gas  is  recognized  by  the 
courts,  and  contracts  pertaining  thereto  are  to  be  construed  with  reference 
to  the  known  characteristics  of  the  business." 

The  order  of  the  lower  court  granting  the  temporary  injunction  is 
affirmed. 


1911] 


EUPEL  ET  AL.  V.  OHIO  OlL  Co.  ET  AL. 


331 


RTJPEL  et  al.  v.  OHIO  OIL  CO.  et  al. 

[Supreme  Court  of  Indiana,  May  23,  1911;  on  petition  to  recall  opinion,  June  2,  1011.] 

—  Ind.  — ,  95  N.  E.  225. 

1.      Appeals   and    Errors — Error   Waived. 

Where  appellants  do  not  state  any  proposition  or  cite  any  authority  in  support 
of  an  assignment  of  error,  it  is  deemed  waived. 
2       Same — Oral  Argument — Request. 

Oral  arguments  should  be  requested  by  written  application  within  the  time  al- 
lowed for  filing  briefs;  otherwise,  the  court  will  refuse  the  application  in  its  discre- 
tion. 

3.  Life  Tenant — Right  to  Explore  for  Oil. 

A  life  tenant  has  no  right  to  grant  the  right  of  exploration  for  oil  and  gas  and  to 
profit  from  its  discovery. 

4.  Injunction — Reversioner — Right  to  Oil   and   Gas. 

Tbe  owner  of  the  reversion  may  enjoin  the  invasion  of  his  right  to  oil  and  gas 
on   his   land. 

5.  Waste — Right  of  Action. 

A  reversioner  may  recover  for  waste  from  one  claiming  under  the  life  tenant  or 
from  a  stranger. 

6.  Same — Account  without   Injunction. 

Equity  will  give  an  account  for  oast  waste  even  without  an  injunction,  if  an 
action  at  law  is  inadequate. 

Appeal  from  the  Circuit  Court,  Jay  County;  J.  F.  La  Follette,  Judge. 

Action  for  waste  by  Martin  L.  Rupel  and  others  against  the  Ohio  Oil 
Company  and  others.  Judgment  for  defendants.  Plaintiffs  appeal.  Re- 
versed. 

For  appellants— S.  A.  Whipple  and  Emerson  McGriff. 

For  appellees — Simmons  &  Dailey. 

COX,  J.  The  appellants,  Martin  L.  Rupel.  Isaac  Rupel,  Jacob 
Rupel,  and  Sarah  Fields,  are,  together  with  appellees  James  Rupel  and 
Rachel  Artwine,  the  owners  in  remainder  as  tenants  in  common,  each 
owning  a  one-sixth  interest,  of  certain  lands  in  Jay  County.  Appellee 
Mary  Rupel,  their  mother,  is  the  owner  in  possession  of  the  life  estate 


NOTE. 

For  other  cases  on  the  rights  of  the 
tenant    for    life    and    of    a    cotenant    in 


mineral  lands,  see  notes  to  Williamson 
et  al.  v.  Jones  et  al.,  19  Mor.  Min. 
Rep.   19. 


332  Water  and  Mineral  Cases.  [Indiana 

in  these  lands.  As  such  life  tenant  in  possession,  she,  without  the  re- 
mainder-men joining  therein,  sought  to  grant  to  the  assignor  of  the 
appellee,  the  Ohio  Oil  Company,  by  contract  in  writing  executed  January 
20,  1 89 1,  the  exclusive  right  to  enter  upon  these  lands  and  explore  for, 
and  to  remove  therefrom,  the  oil  and  gas  found.  Their  contract  contained 
the  usual  stipulations  for  cash  payments  and  for  royalties,  to  be  paid  by 
the  explorer  to  Mary  Rupel,  the  life  tenant,  the  right  to  lay  pipes  for  oil 
and  gas  lines  and  the  obligation  to  bury  them,  and  to  pay  damages  for 
injuries  to  timber  and  crops,  to  leave  the  fences  and  drains  in  as  good  con- 
dition as  found,  and  to  so  locate  wells  as  to  protect  buildings  on  the  prem- 
ises. The  appellee,  the  Ohio  Oil  Company,  as  the  assignee  of  this  contract, 
entered  upon  the  lands  thereunder  January  1,  1902,  drilled  wells,  and 
removed  large  quantities  of  oil  up  to  the  time  this  action  was  brought, 
September  5,  1905.  The  appellants  brought  this  action  by  complaint 
in  two  paragraphs  against  appellee  oil  company  to  recover  damages  in 
the  nature  of  waste  of  their  inheritance.  They  joined  Mary  Rupel,  the 
life  tenant,  and  James  Rupel  and  Rachel  Artwine,  their  cotenants,  as 
defendants  to  answer  as  to  their  interests,  if  any,  in  and  to  the  oil  re- 
moved or  to  the  proceeds  from  the  sale  of  it.  The  first  paragraph  set 
out  in  substance,  amongst  other  things,  the  source  of  the  appellants'  title 
at  length,  the  status  of  Mary  Rupel  as  life  tenant,  that  of  James  Rupel 
and  Rachel  Artwine  as  that  of  cotenants  of  plaintiffs,  the  execution  of 
the  contract  by  the  life  tenant  granting  the  right  to  one  Wolf  to  explore 
the  lands  for  oil  and  gas,  the  assignment  of  the  same  to  the  Ohio  Oil 
Company,  the  knowledge  of  the  oil  company  of  the  status  of  Mary 
Rupel  and  of  appellants  when  the  contract  was  executed  by  her  and  at 
the  time  of  their  entry,  the  entry  upon  the  premises  by  the  oil  company, 
the  drilling  of  wells  thereon,  and  removal  by  it  therefrom 
of  many  thousands  of  barrels  of  oil ;  that  the  execution  of 
the  contract,  the  assignment,  and  the  entry  by  the  oil  company 
and  removal  of  the  oil  were  without  the  knowledge  or  consent  of  appel- 
lants ;  that  the  oil  company  had  not  accounted  to  or  paid  appellants  for 
the  oil  or  any  part  of  it,  but  converted  and  appropriated  it;  that,  by 
reason  of  the  wrongful  taking  of  the  oil  from  the  land,  the  reversion  of 
appellants  was  greatly  injured  and  reduced  in  value,  and  great  waste 
thereof  committed  by  the  oil  company.  There  was  in  conclusion  a  prayer 
for  judgment  against  the  oil  company  in  the  sum  of  $100,000. 

The  second  paragraph  was  similar  in  its  allegations  of  facts,  except 
that  the  source  of  title  was  not  set  out  in  full,  nor  was  the  contract,  and 
the  conclusion  was  that  appellants  had  demanded  an  accounting,  settle- 
ment, and  payment  of  the  oil  company  for  the  oil  so  taken  before  the 
bringing  of  the  action,  which  was  refused,  and  that,  by  reason  of  the 


1911]  Eupel  et  al.  v.  Ohio  Oil  Co.  et  al. 

appropriation  of  the  oil  as  alleged,  appellants  had  been  damaged  by  the 
oil  company,  and  by  reason  thereof  it  was  indebted  to  appellants  m  the 
sum  of  $100,000,  for  which  judgment  was  demanded.  A  separate  de- 
murrer for  want  of  facts,  by  the  oil  company  was  sustained  to  each  par- 
agraph of  the  complaint,  as  were  joint  demurrers  for  the  same  cause  by 
the  other  three  defendants,  and  plaintiffs,  refusing  to  plead  further,  appeal 
from  the  judgment  thereupon  rendered  against  them.  Errors  are  properly 
assigned  on  the  rulings  of  the  trial  court  on  these  demurrers. 

Appellants'  counsel  have  not  stated  in  their  brief  any  proposition 
or  point  or  cited  authority  in  support  of  their  assignment  of  error  that 
the  court  erred  in  sustaining  the  demurrers  of  Mary  Rupel,  James  Rupe;, 
and  Rachel  Artwine,  and  therefore,  under  the  rules  and  decisions  of  this 
court   this  assignment  is  deemed  waived,  and  will  not  be  considered 

It 'remains    only    to    determine    whether    the    complaint    or    either 
paragraph  stated  a  cause  of  action  against  the  Ohio  Oil  Company.    It  is 
the  contention  of  counsel  for  appellees  that  it  is  within  the  rights  of  a 
life  tenant  to  make  a  valid  contract  to  permit  the  search  of  the  substance 
of  the  estate  for  oil  and  to  profit  therefrom  when  found.     This  conten- 
tion is  based  on  what  seems  to  be  the  settled  rule  in  this  state  that  oil  and 
gas  which  may  underlie  the  real  estate  do  not  become  the  absolute  prop- 
erty of  the  owner  of  the  land  until  he  has  discovered  them  by  explora- 
tion and  mining  his  land  and  reduced  them  to  his  dominion.     This  is  so 
because  of  their  supposed  wandering  and  vagrant  character.     But  this 
rule  of  property  does  not  in  any  way  modify  the  general  common  law 
that  the  ownership  of  the  fee  of  the  surface  of  the  earth  parries  with  1 
the  right  to  the  minerals  beneath,  and  the  consequent  right  to  extract 
hem     This  right  is  exclusive  in  the  owner  of  the  fee.     The  life  tenant 
in  possession  has  no  such  right,  and,  not  having  it,  he  cannot,  of  course 
grant  it  to  another.     16  Cyc.  625:  Ohio  Oil  Company  v.  Indiana,  177  U. 
S.  loo,  20  Sup.  Ct.  576,  44  L.  Ed.  729.  . 

Where  oil  underlies  the  surface  of  land,  it  cannot  be  denied  that 
for  the  time  it  is  physically  a  part  of  it.  To  recover  it  rom  theearth 
requires  an  assault  on  the  integrity  of  the  estate  like,  if  different  in  de- 
gree to  the  taking  of  other  minerals,  and  when  recovered  from  the .earth  1 
Tas  much  property  as  any  other  mineral  in,  or  on,  or  underlying  the  land , 
when  severed  from  its  physical  connection  with  the  earth  it  becomes  per- 
sonal propertv  as  other  minerals  do.  The  owner  of  the  fee  alone  or  one 
to  whom  he  has  granted  the  right,  may  invade  the  substance  of  the  in- 
heritance to  take  one  as  well  as  the  other.  He  may  prevent  one  not  en- 
titled from  taking  one  from  the  estate  as  well  as  the  other,  or  where  the 
waste  or  trespass  has  been  committed,  he  has  his  remedy  in  the  one  case 
Ts  wen  as  the  other.    27  Cyc.  629,  630.    In  the  case  of  Richmond  Natural 


334  Water  and  Mineral  Cases.  [Indiana 

Gas  Co.  v.  Davenport  (1905),  37  Ind.  App.  25,  76  N.  E.  525,  it  was  held 
that  the  owner  of  the  fee  might  enjoin  the  life  tenant  in  possession  and 
her  lessee  from  drilling  for  and  removing  oil  and  gas  from  the  estate 
as  waste.  In  that  case  it  was  said:  "It  is  settled  by  numerous  decisions 
that  the  natural  gas  or  the  petroleum  which  may  be  under  the  surface, 
and  not  reduced  to  the  actual  possession  of  any  person,  constitutes  a 
part  of  the  land,  and  belongs  to  the  owner  thereof  in  such  a  sense  that 
he  has  the  exclusive  right  by  operations  upon  his  land  to  reduce  such 
mineral  substance  to  possession  and  use  and  enjoyment  and  to  grant  the 
privilege  of  doing  so  to  other  persons,  though,  until  so  reduced  to  pos- 
session, the  mineral  substance  is  subject  to  be  taken  by  any  other  person 
by  proper  operations  upon  his  own  land,  and  that  a  person  in  possession 
who  has  such  exclusive  right  in  particular  land,  as  owner  of  the  land  or 
as  lessee  or  grantee  with  the  privilege  of  extracting  such  minerals,  may 
by  injunction  prevent  operations  for  such  purpose  by  others  who  have 
not  rightfully  acquired  the  privilege  from  the  owner  of  the  land  in  fee. 
The  taking  of  these  minerals  by  a  stranger  by  means  of  wells  made 
without  right  for  such  purpose  constitutes  a  trespass,  damages  for  which 
cannot  be  definitely  measured.  And  the  taking  by  one  lawfully  in  pos- 
session of  the  surface,  with  right  to  enjoy  the  income  and  profits,  but 
not  the  owner  of  the  fee  and  not  having  received  from  such  owner  the 
privilege  so  to  take  the  minerals — that  is,  by  a  tenant  of  the  land  for 
years  or  for  life — constitutes  waste."  It  has  been  held  in  this  state  that 
one  who  has  been  granted  by  the  owner  of  the  fee  the  exclusive  right 
to  take  oil  and  gas  from  the  land  may  enjoin  the  invasion  of  the  right  by 
a  stranger.  Indianapolis  Natural  Gas  Co.  v.  Kibbey,  135  Ind.  357,  35 
N.  E.  392  (1893)  ;  Consumers'  Gas  Co.  v.  American,  etc.,  Co.,  162  Ind. 
393,  68  N.  E.  1020  (1903)  ;  American,  etc.,  Co.  v.  Tate,  33  Ind.  App.  504, 
71  N.  E.  189  (1904).  It  must  necessarily  follow  that  a  like  remedy 
would  be  available  to  the  owner  himself. 

It  is  practically  conceded  by  counsel  for  appellee  that  every  owner  of 
the  fee  has  such  a  right  in  and  control  over  the  oil  and  gas  underlying 
his  land  that  the  preventive  remedy  of  injunction  is  his,  but  contend 
that,  if  he  fails  to  deny  access  by  the  use  of  it,  he  cannot  assert  a  right 
to  compensation  after  the  oil  and  gas  have  been  wrongfully  removed.  This 
must  lead  to  a  position  unmaintainable:  That  an  owner  who  is  present 
and  has  knowledge  of  a  threatened  injury  to  his  estate,  may  prevent  the 
injury,  while  an  owner  absent,  with  no  knowledge  of  a  threatened  injury 
until  after  it  has  been  fully  accomplished,  is  remediless.  The  statement 
of  the  proposition  is  in  itself  a  refutation  of  its  soundness.  The  law 
is  otherwise,  and  has  long  been  so.  Anciently  in  England  by  the  com- 
mon law  and  early  statutes  the  remedies  for  waste  were  the  writ  estrepe- 


1911]  Eupel  et  al.  v.  Ohio  Oil  Co.  et  al.  335 

ment  and  prohibition  of  waste  to  prevent  a  threatened  waste.,  and  the 
writ  of  waste  for  the  recovery  of  the  estate  and  of  damages  for  waste 
committed.  The  ancient  preventive  remedies  have  given  way  to  the 
more  modern  remedy  of  injunction  now  available  in  our  practice.  The 
writ  of  waste  to  recover  damages  for  waste  committed  was  succeeded 
by  the  common-law  action  on  the  case  in  the  nature  of  waste,  which,  in 
turn,  has  become  our  code  action  for  damages  for  waste  or  trespass  in 
the  nature  of  waste.  30  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.),  pp.  272- 
274;  22  Encyc.  of  PI.  &  Pr.  1095  et  seq.;  Burns'  Stats.,  1908,  §§  288,  289., 

At  common  law  the  reversioner  might  sue  the  life  tenant  for 
damages  for  waste,  but,  as  privity  of  estate  between  the  parties  was  nec- 
essary to  the  maintenance  of  an  action  for  waste,  he  might  not  sue  one 
claiming  under  the  life  tenant  or  a  stranger.  This  rule,  however,  no 
longer  prevails,  and  the  modern  action  to  recover  damages  may  be  main- 
tained against  the  life  tenant  or  a  subtenant  or  a  stranger.  22  Encyc.  of 
PI.  &  Pr.,  pp.  1095,  1 107,  1 108,  and  notes.  In  harmony  with  the  rule 
that  has  always  prevailed,  it  is  held  in  this  state  that  the  reversioner  may 
not  only  enjoin  the  commission  of  waste  by  the  life  tenant,  but  may 
recover  damages  for  that  already  committed.  Miller  v.  Shields  (1876), 
55  Ind.  71 :  Stout  v.  Dunning  (1880),  72  Ind.  343;  Robertson  v.  Meadors 
(1880),  73  Ind.  43.  Indeed,  the  statute  so  provides  specifically  as  to 
the  action  for  damages.     Burns'  Stats.,  §§  288,  289. 

Equity  will  give  an  account  for  past  waste,  and,  if  it  be  of  such 
a  character  that  an  action  at  law  for  damages  will  not  give  adequate 
relief,  equity  will  give  the  remedy  of  account,  even  if  an  injunction  may 
not  be  had.  30  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.),  p.  300;  16  Cyc. 
644;  22  Encyc.  of  PI.  &  Pr.  11 35.  A  comparatively  late  case,  that  of 
Bender  v.  Brooks  (Tex.  1910),  127  S.  W.  168,  was  an  action  to  recover 
the  possession  of  a  tract  of  land  and  for  damages  for  oil  taken  there- 
from, and  the  same  rule  of  property  in  oil  in  the  earth  that  prevails  gen- 
erally in  this  state  and  elsewhere  was  recognized.  In  the  course  of  the 
opinion  of  the  court  it  was  said :  "It  is  true  that  appellants,  as  owners  of 
the  land,  had  no  specific  title  to  the  oil  therein  until  it  has  been  removed 
from  the  earth.  *  *  *  Appellants  had  the  exclusive  right  as  owners 
of  the  soil  to  take  the  oil  therefrom ;  and  the  appellee  by  an  invasion  of 
their  right  and  removal  of  the  oil,  no  matter  how  innocently,  could  not 
acquire  title  thereto.  It  follows  logically  that  since  appellants  owned 
this  land  from  which  appellee  extracted  the  oil  the  oil  so  removed  became 
and  was  the  property  of  appellants  so  soon  as  it  reached  the  surface. 
Therefore  they  had  a  right  to  recover  their  property  or  its  value."  It 
was  further  held  in  that  case  that  an  account  should  be  taken  to  ascertain 
the  damages.     In  the  case  of  Marshall  v.  Mellon,  179  Pa.  371,  36  Atl. 


336  Water  and  Mineral  Cases.  [Indiana 

201,  35  L.  R.  A.  816,  57  Am.  St.  Rep.  601,  while  recognizing  the  inherent 
difference  between  oil  and  other  minerals  in  the  earth  which  prevents  an 
absolute  ownership  in  the  former  until  it  is  taken  possession  of,  it  was 
held  that  with  respect  to  the  rights  and  interests  of  life  tenants  and  re- 
mainder-men there  is  no  departure  from  the  common-law  rule  that  tenants 
for  life  only  may  not  open  new  mines,  or  take  minerals  from  the  prem- 
ises except  in  case  of  mines  opened  by  the  former  owner,  and  that  a  life 
tenant  could  neither  open  oil  and  gas  wells  or  grant  the  right  to  another. 
The  case  of  Williamson  v.  Jones,  39  W.  Va.  231,  19  S.  E.  436,  75  L.  R. 
A.  222,  is  to  the  same  effect,  that  a  life  tenant  or  one  claiming  under  him 
may  not  drill  wells  and  take  oil  from  the  estate,  and,  when  it  is  done,  that 
the  owner  of  the  fee  may  enjoin  the  waste  or  trespass,  and  have  an  ac- 
count for  that  committed.  See,  also,  the  further  exhaustive  considera- 
tion of  the  same  case,  43  W.  Va.  562,  27  S.  E.  411,  38  L.  R.  A.  694,  64 
Am.  St.  Rep.  891 ;  Gerkins  v.  Kentucky  Salt  Co.,  100  Ky.  734.  39  S.  W. 
444,  66  Am.  St.  Rep.  370.  We  believe  the  cases  and  books  cited  indi- 
cate the  law  applicable  to  the  case  made  by  the  two  paragraphs  of  the 
complaint  under  consideration  in  this  case,  and  it  follows  that  the  trial 
court  erred  in  sustaining  the  demurrer  of  appellee  oil  company  to  each 
of  them. 

We  are  asked  to  determine  a  question  of  estoppel  of  appellants  by 
knowledge  of  the  operations  of  the  oil  company  on  the  land  in  question. 
This  we  decline  to  do.  No  such  question  is  presented,  but  the  contrary, 
for  both  paragraphs  disavow  knowledge  on  the  part  of  appellants  of  the 

fact. 

For  the  error  above  indicated,  the  cause  is  reversed,  with  instructions 
to  the  trial  court  to  overrule  the  demurrers  of  the  Ohio  Oil  Company  to 
each  paragraph  of  the  complaint. 

On  Petition  to  Recall  Opinion. 

The  appellee,  the  Ohio  Oil  Company,  has  filed  its  petition  asking 
that  the  opinion  rendered  in  the  cause  be  recalled,  and  that  its  petition 
for  an  oral  argument  filed  while  the  cause  was  pending  in  the  appellate 
court  and  addressed  to  that  court  not  be  ruled  on,  be  granted,  and  that 
oral  argument  on  the  questions  of  law  involved  be  heard.  This  petition 
has  been  given  due  consideration.  The  cause  was  ably  and  exhaustively 
briefed  by  the  learned  counsel  for  appellee.  All  of  the  briefs  contem- 
plated by  law  and  the  rules  of  this  court  were  in  March  12,  1909.  and 
appellee's  petition  for  oral  argument  was  not  filed  until  July  19,  1909, 
more  than  nine  months  after  submission  of  the  cause.  Oral  arguments 
should  be  requested  by  written  application  within  the  time  allowed  for 


1911]  Eupel  et  al.  v.  Ohio  Oil  Co.  et  al.  337 

filing  briefs;  otherwise  the  court  in  its  discretion  will  refuse  the  appli- 
cation. This  is  the  provision  of  rule  26  (55  N.  E.  vi)  of  the  rules  of  this 
court. 

Petition  to  recall  opinion  and  grant  an  oral  argument  is  therefore  over- 
ruled. 


W.  &  M.— 22 


338  Water  and  Mineral  Cases.         [New  Mexico 

YOUNG  v.  HINDERLIDER. 

[Supreme  Court  of  New  Mexico,  August  30,  1910.] 
15  N.  M.  666,  110  Pac.  1045. 

1.  Waters    and    Water  Courses — Appropriation — Action    of     Territorial     En- 

gineer— Construction  of  Statute. 
Under  the  laws  of   1907,   c   49,   regarding  the   disposition  of  public   waters,   the 
territorial  engineer  is  not,  either  by  the  express  terms  of  the  statute  or  by  implica- 
tion,  restricted   in  rejecting  an   application  to  the  ground  that  the   project  would 
be  a  menace  to  the  public  health  or  safety. 

2.  Same — Object  of  Statute. 

The  object  of  the  statute  is  to  secure  the  greatest  possible  benefit  to  the  public 
from  the  public  waters  of  the  state. 

3.  Same — Public   Interest — Protection   of   Investors. 

It  is  of  public  interest  to  protect  investors  against  worthless  investments  by 
official  approval  of  unsound  enterprises. 

4.  Same — Approval   of   Irrigation    Project. 

It  is  against  public  interest  that  an  irrigation  project  receive  official  approval 
when  the  result  would  be  the  sale  of  land  which  could  not  be  irrigated  at  the  price 
of  irrigated  land. 

5.  Same — Irrigation      Project — Consideration    of      Cost      in      Determining 

Application. 
The  mere  fact  of  the  cost  of  one  irrigation  project  in  excess  of  that  of  another 
is  no  ground  for  rejecting  the  first,  but  the  cost  should  be  taken  into  consideration 
in  determining  upon  the  granting  or    rejection  of  the  application. 

6.  Same — Other    Matters   Considered. 

In  determining  what  is  a  reasonable  charge  for  water  for  irrigation,  the  cost  of 
construction  and  operation  of  the  works,  the  productiveness  of  the  land,  and  the 
other  circumstances  which  show  what  the  owners  can  afford  to  pay  for  water,  must 
be  taken  into  consideration. 

7.  Same — Residence  of  Applicants  Considered. 

The  fact  that  one  applicant  is  not  a  resident  of  the  territory  and  that  others  are 
actual  settlers,  may  be  taken  into  consideration  in  determining  the  question  of 
public  interest,  but  should  not  outweigh  all  other  considerations. 

8.  Same — Granting    Application    in    Part. 

That  a  subsequent  application  for  approval  of  project  for  irrigation  is  better 
than  a  prior  one,  is  no  reason  why  the  prior  one  should  not  be  granted  as  to  the 
land  for  which  it  is  available  or   feasible. 

Appeal  from  judgment  of  district  court,  affirming  decision  of  Board  of 
Water  Commissioners  reversing  decision  of  territorial  engineer,  rejecting 
one  application  for  permit  to  appropriate  waters  for  irrigation  project 
and  granting  a  subsequent  application.  Reversed  and  remanded  for 
further  proceedings. 

On  the  ist  day  of  October,  1907,  M.  C.  Hinderlider  filed  with  the 
territorial   engineer   an   application    for   a   permit   to   appropriate   two 


1910] 


Young  v.  Hinderlidek. 


339 


hundred  second  feet  of  the  flow  of  the  La  Plata  River  in  San  Juan  County, 
N.  M.,  and  for  the  construction  of  a  storage  reservoir  with  a  storage 
capacity  of  12,406  acre  feet,  for  the  purpose  of  reclaiming  and  irrigating 
about  14,000  acres  of  land  in  said  county.  On  December  20,  1907,  Messrs. 
Young  &  Norton  for  themselves  and  others  filed  with  the  territorial  en- 
gineer an  application  for  a  permit  to  appropriate  the  waters  of  the  same 
stream  in  the  same  county  and  territory,  for  the  purpose  of  reclaiming  and 
irrigating  about  5,000  acres  of  land,  being  a  part  of  the  same  land  cov- 
ered by  the  Hinderlider  project.  This  last  application  included  the  con- 
struction of  a  storage  reservoir  with  a  storage  capacity  of  10,149  acre 
feet  for  the  purpose  of  storing  the  flood  waters  of  the  said  river  and 
applying  the  same  to  the  reclamation  of  the  said  5,000  acres  of  land. 
After  the  publication  of  the  notice  required  by  law,  and  on  the  19th 
day  of  March,  1908,  the  said  Young,  Norton,  and  others  filed  with  the 
territorial  engineer  a  protest  against  the  approval  of  the  said  Hinderlider 
application.  After  a  hearing  before  the  territorial  engineer,  and  on  July 
20,  1908,  he  rendered  an  opinion  sustaining  said  protest,  rejecting  the 
Hinderlider  application,  and  approving  the  application  of  the  protestants ; 
the  said  findings  and  order  of  the  said  territorial  engineer,  omitting  the 
caption,  being  in  words  and  figures  as  follows: 

"The  territorial  engineer  finds,  from  the  evidence  presented  by  oral 
testimony,  at  the  hearing  in  the  above  matter,  at  Aztec,  on  the  10th 
day  of  April,  1908,  from  affidavits  presented  before  and  after  said  hearing, 
and  from  the  official  records: 

"First.  That  M.  C.  Hinderlider  on  the  1st  day  of  October,  1907,  filed 
with  the  territorial  engineer  an  application  for  a  permit  to  appropriate 
an  amount  equal  to  two  hundred  second  feet  of  continuous  flow  during 
irrigation  season,  of  public  water  from  the  La  Plata  River,  for  the 
purpose  of  irrigating  14,000  acres. 

"Second.  That  the  survey  necessary  before  making  said  application 
was  made  prior  to  the  opening  of  the  land  for  settlement,  and  that  the 
application  was  asked  for  the  purpose  of  appropriating  said  water  by  the 
forming  of  a  company,  the  building  of  necessary  construction  works,  and 


CASE   NOTE. 

Jurisdiction  of  Water  Commissioners 
and  Officers  of  Similar  Character. 

I.     Object    and    Constitution- 
ality op  Statute,  340. 

II.     Not  Judicial  Officers,  342. 
III.     Over    What    Waters,    342. 
A.     Private      and      Appro- 
priated Waters,  342. 


B.     Seepage  and  Percolat- 
ing Waters,  342. 

IV.     Applications  to,  343. 

A.  Necessity  for,  343. 

B.  Effect  of,  344. 

C.  Granting  in  Part,  344. 

V.     Powers  and  Duties,  345. 

A.  To    Enforce    Decrees, 

345. 

B.  To  Prevent  Waste,  etc 

345. 


340 


Water  and  Mineral  Cases.         [New  Mexico 


the  sale  of  water  rights  at  a  cost  of  forty  dollars  per  acre  on  land  under 
said  project,  and  that  a  large  portion  of  said  land  is  under  the  control 
of  protestants  who  have  entered  or  settled  on  the  land. 

"Third.  That  on  March  19,  1908,  Young,  Norton,  and  twenty-two 
others  filed  protests  against  the  granting  of  said  application  of  M.  C. 
Hinderlider,  and  also  against  the  granting  of  an  application  by  Jay 
Turley  and  others. 

"Fourth.  That  the  protestants,  Young  &  Norton  and  others,  filed 
application  for  a  permit  to  appropriate  public  waters  from  the  same  stream 
on  the  20th  day  of  December,  1907,  with  the  intention  of  irrigating  5,000 
acres. 

"Fifth.  That  Young  &  Norton  et  al.  are  actual  settlers  or  entry  men 
on  about  5,500  acres  under  the  project,  and  that  the  above  parties  imme- 
diately after  October  3,  1907,  when  the  said  lands  were  opened  to  entry 
by  the  United  States  government,  employed  surveyors  to  make  surveys 
preparatory  to  making  an  application  for  a  permit  to  appropriate,  and  that 
they  used  reasonable  diligence  in  collecting  data  in  the  shape  of  maps 
and  surveys,  for  the  filing  of  said  application  at  an  early  date. 

"Sixth.  That  the  application  of  Young  &  Norton  was  not  asked  for 
speculative  purposes,  but  with  the  intent  of  irrigating  and  developing 
the  lands  now  settled  or  entered  upon  by  said  settlers. 

"Seventh.  That  the  cost  of  their  work  can  be  built  by  Young  &  Norton 
et  al.  for  less  than  twenty  dollars  an  acre. 

"Eighth.  That  on  the  25th  day  of  October,  1907,  Jay  Turley  and  H.  L. 
Hollister  filed  an  application  for  a  permit  to  appropriate  water  from  said 
La  Plata  River  to  irrigate  the  lands  owned  by  Young  &  Norton  et  al., 
and  the  engineer  ordered  of  them  a  statement  of  their  intended  prices 
per  water  right  for  land  under  control  by  protestants,  but  statement  of 
said  prices)  was  not  filed  in  the  office  of  the  territorial  engineer,  but 
that  he  was  informed  verbally  that  they  would  ask  thirty-five  dollars  an 
acre  for  water  right  upon  said  land. 

"Ninth.  That  the  extent  of  the  unappropriated  flood  waters  available 
is  not  sufficient  to  irrigate  more  than  5,000  or  6,000  acres. 


C.  Cannot    Affect    Prior 

Appropriator,  346. 

D.  Not    to    Litigate    Dis- 

putes, 347. 

E.  Not    to     Impeach    De- 

crees, 347. 

F.  Not  to  Change  the  Use, 

348. 

G.  To  Extend  Time,  348. 

VI.     Officers  de  Facto,  349. 


I.     Object    and    Constitutionality    of 
Statute. 

It  is  policy  of  the  law  to  regulate 
the  diversion  and  use  of  the  waters  flow- 
ing in  the  streams  of  the  state  for  the 
irrigation  of  lands  by  an  uniform  sys- 
tem applying  to  all  waters  thus  di- 
verted, and  the  law  of  appropriation  as 


1910] 


Young  v.  Hindeelidek. 


341 


"Therefore,  the  engineer  is  of  the  opinion: 

"First.  That  there  is  unappropriated  water  available  for  approximately 
5,000  or  6,000  acres. 

"Second.  That  either  the  applicant  or  protestants,  if  their  applications 
were  approved,  could  and  would  complete  their  appropriation  satisfac- 
torily to  the  territory. 

"Third.  That  the  Young  &  Norton  et  al.  project  is  more  within  the 
available  water  supply,  making  the  same  more  feasible. 

"Fourth.  That  it  would  not  be  to  the  best  interests  of  the  public  to 
approve  the  application  of  M.  C.  Hinderlider,  thereby  forcing  the  protest- 
ants to  pay  more  than  double  price  for  their  water  rights.  The  same 
conditions  as  to  the  public  interest  would  also  apply  to  the  application 
of  Jay  Turley  et  al.,  in  so  far  as  the  amount  of  water  allowed  in  the 
approval  of  Young  &  Norton  et  al.  application  might  be  affected. 

"It  is  therefore  ordered  that  the  application  of  Young  &  Norton  be 
approved,  as  follows: 

"Approval  of  Territorial  Engineer. 

"The  number  of  this  permit  is  107. 

"Date  of  receipt  of  first  application,  December  20,  1907. 

"Publication  of  notice  completed  and  proof  filed  March  23,  1908. 

"Application  recorded  in  Book  A,  page  107. 

"Approved  this  20th  day  of  July,  1908. 

"This  is  to  certify  that  I  have  examined  the  within  application  for  a 
permit  to  appropriate  the  public  waters  of  the  territory  of  New  Mexico, 
and  hereby  approve  the  same. 

"The  amount  of  water  appropriated: 

"(a)     By  diversion cubic  feet  per  second. 

"(b)     By  storage  20,290  acre  feet. 

"(c)  Remarks:  This  application  is  limited  to  an  annual  appropria- 
tion of  20,290  acre  feet  and  shall  not  be  exercised  at  such  times  that  the 
same  would  be  of  detriment  of  prior  valid  rights  to  the  use  of  water 
from  said  stream. 


defined  by  the  statute  and  administered 
by  the  state  board  of  irrigation,  is 
deemed  an  effective  means  to  accomplish 
the  desired  results.  McCook  Irrigation 
&  Water  Power  Co.  v.  Crews,  70  Neb. 
115,   102   N.  W.  249    (1905). 

The  rejection  of  an  application  for  a 
permit  for  an  irrigation  project  is  not 
restricted  to  the  ground  that  the  same 
would  be  a  menace  to  public  health  or 


safety,  but  action  should  be  based  upon 
the  best  public  good  and  interest.  Young 
v.  Hinderlider,  principal  case. 

The  statute  governing  the  appropria- 
tion of  water  flowing  in  the  streams  of 
the  state  for  the  purposes  of  irrigation 
is  constitutional.  McCook  Irrigation  & 
Water  Power  Co.  v.  Crews,  70  Neb.  115, 
102   N.   W.   249    (1905). 


342 


Water  and  Mineral  Cases.         [New  Mexico 


"The  construction  of  the  within  described  works  to  be  commenced 
not  later  than  January  i,  1909. 

"One-fifth  of  the  work  above  specified  to  be  completed  on  or  before 
July  20,  1909. 

"The  whole  of  said  work  to  be  completed  on  or  before  July  20,  1910. 

"The  time  for  application  to  beneficial  use  shall  not  be  later  than 
October  1,  191 1. 

"Witness  my  hand  this  20th  day  of  July,  A.  D.,  1908. 

"[Signed]  Vernon  L.  Sullivan, 

"Territorial  Engineer. 

"In  the  event  of  the  failure  of  Young  &  Norton  et  al.  to  complete  their 
appropriation  according  to  the  above  approval,  the  application  of  M.  C. 
Hinderlider  and  Turley  and  others  will  be  considered  in  routine  of  their 
priority  of  filing. 

"Santa  Fe,  New  Mexico,  July  20,  1908." 

Thereupon  the  said  Hinderlider  appealed  from  the  decision  of  the  said 
territorial  engineer  to  the  board  of  water  commissioners  of  this  territory, 
which  board,  after  hearing  all  of  the  evidence  offered  by  the  parties  and 
the  argument  of  counsel,  reversed  the  decision  of  the  said  engineer,  and 
directed  him  to  approve  the  application  of  the  said  Hinderlider;  the 
findings  and  order  of  said  board  being  in  words  and  figures  as  follows, 
to  wit: 

"Statement. 

"It  appears  from  the  records  in  the  office  of  the  territorial  engineer 
and  from  the  applications,  maps,  plats,  field  notes,  and  affidavits  and 
other  papers  filed  in  the  office  of  the  territorial  engineer  and  with  the 
board,  and  from  the  testimony  presented  to  the  board  at  the  several  hear- 
ings: That  on  the  1st  day  of  October,  1907,  M.  C.  Hinderlider  filed 
with  the  territorial  engineer  an  application  for  a  permit  to  appropriate 
water  from  the  La  Plata  River  in  San  Juan  County,  N.  M.,  to  an  amount 
equal  to  two  hundred  second  feet  continuous  flow  during  the  irrigation 


II.  Not   Judicial    Officers. 

Water  commissioners  and  engineers 
have  no  power  to  act  in  a  judicial  capac- 
ity. Boulder  &  Left  Hand  Ditch  Co.  v. 
Hoover,  48  Colo.  343,  110  Pac.  75. 

III.  Over  What  Waters. 
A.      Private  and   Appropriated 

Waters. 

Jurisdiction  of  territorial  engineer 
does  not  extend  to  waters  held  in  private 


ownership  or  by  prior  appropriation  but 
only  to  the  public  unappropriated 
waters.  Vanderwork  v.  Hewes,  post,  p. 
351. 

B.      Seepage  and  Percolating  Waters. 

No  application  to  engineer  is  necessary 
to  appropriation  of  seepage  or  spring 
water  on  appropriator's  own  lands.  Van- 
derwork v.  Hewes,  post,  p.  351. 


1910] 


Young  v.  Hinderlider.  - 


343 


season,  for  the  purpose  of  irrigating  14,000  acres  of  land  and  for  the 
construction  of  a  storage  reservoir  with  a  capacity  of  12,406  acre  feet 
at  one  filling,  and  the  ditches  and  reservoirs  necessary  to  carry  out  said 
project.  That  after  publication  of  notice  a  protest  was  filed  by  appellees 
Young  &  Norton  et  al.,  on  March  19,  1908,  and  after  a  hearing  on  April 
10,  1908,  the  territorial  engineer  sustained  the  protest  and  rejected  the 
application  of  M.  C.  Hinderlider,  at  the  same  time  approving  the  ap- 
plication for  practically  the  same  water,  filed  by  John  D.  Young  and 
Geo.  N.  Norton,  two  of  the  protestants,  which  application  was  filed  in 
the  office  of  the  territorial  engineer  on  December  20,  1907,  and  contem- 
plated irrigating  about  5,000  acres  of  land.  From  this  decision  M.  C. 
Hinderlider  appealed  to  the  board.  The  reasons  alleged  by  the  protest- 
ants for  the  rejection  of  Mr.  Hinderlider's  application  were:  That  the 
protestants  were  actual  settlers  or  entry  men  on  some  of  the  land  pro- 
posed to  be  watered ;  that  the  application  of  Mr.  Hinderlider  was  not 
based  upon  actual  surveys,  measurements,  and  field  notes  made  by  him, 
but  upon  surveys  made  by  the  United  States  Reclamation  Service  at  the 
expense  of  the  United  States,  and  which  he  was  not  entitled  to  use  for 
his  personal  benefit;  and  that  the  project  contemplated  by  the  applica- 
tion of  Hinderlider  was  considerably  more  expensive  than  that  contem- 
plated by  the  application  of  Messrs.  Young  &  Norton,  and  the  rejection 
of  the  Hinderlider  application  and  the  approval  of  that  of  Young  &  Nor- 
ton might  enable  the  owners  of  the  land  in  that  neighborhood  to  obtain 
water  rights  at  less  cost.  In  rejecting  the  application  of  Hinderlider  and 
approving  that  of  Young  &  Norton,  the  territorial  engineer  gives  as  his 
chief  reason  for  his  decision  that  the  project  of  Young  &  Norton  is  more 
within  the  available  water  supply,  and  therefore  a  more  feasible  project, 
and  that  it  would  not  be  to  the  best  interests  of  the  public  to  approve 
the  application  of  Hinderlider,  thereby  forcing  the  protestants  to  pay  a 
larger  price  for  their  water  rights  than  they  have  to  pay  under  the 
project  of  Young  &  Norton. 

"At  the  hearing  before  the  board,  at  Farmington,  in  San  Juan  County, 
and  the  subsequent  hearing  in  Santa  Fe,  it  was  shown  to  the  satisfaction 


Jurisdiction  of  territorial  engineer 
does  not  extend  to  seepage,  percolating 
or  spring  waters  on  private  lands.  Van- 
derwork   v.    Hewes,   supra. 

Jurisdiction  of  territorial  engineer  over 
seepage  waters  extends  only  to  seepage 
waters  from  constructed  reservoirs, 
ditches,  etc.  Vanderwork  v.  Hewes, 
supra. 


IV.  Applications  to. 
A.  Necessity  for. 
A  water  master  has  no  legal  authority 
to  begin  his  work  as  water  master  until 
he  has  been  called  upon  by  two  or  more 
owners  or  managers  of  ditches  or  persons 
controlling  ditches  in  his  district,  by  ap- 
plication in  writing,  stating  that  there  is 
a  necessity  for  the  use  of  water.     Until 


su 


Water  and  Mineral  Cases.         [New  Mexico 


of  the  board  that  the  survey  from  which  the  maps,  plats,  and  field  notes 
filed  by  Hinderlider  were  made  was  an  actual  survey  made  under  his 
direction,  and  at  his  expense,  by  an  engineer  and  assistants  employed 
by  him.  It  appears  that  the  engineer  employed  by  Hinderlider  did  retrace 
a  ditch  line  previously  surveyed  by  the  United  States  Reclamation  Ser- 
vice, using  the  government  stakes  whenever  convenient,  or  wherever 
they  were  in  place;  but  the  testimony  of  the  engineer  and  his  assistants 
and  the  original  field  book  kept  by  him,  in  which  the  notes  of  his  surveys 
were  recorded,  showed  conclusively  that  he  did  make  an  actual  survey, 
and  that  the  plats,  maps,  and  field  notes  filed  by  Hinderlider  were  taken 
from  these  notes.  It  was  shown  by  the  evidence  that  Hinderlider,  and 
also  the  engineer  employed  by  him  to  make  this  survey,  had  been  in  the 
employ  of  the  United  States  Reclamation  Service  in  making  surveys  in 
that  neighborhood  for  an  irrigation  project  which  had  been  abandoned 
by  the  government,  and  the  knowledge  so  obtained  and  the  stakes  of  the 
abandoned  government  ditch  line  were  undoubtedly  of  great  assistance  to 
them  in  making  the  subsequent  survey ;  but  it  appears  that  they  did  not 
use  the  field  notes  of  the  government  survey  in  any  manner  in  preparing 
the  application,  maps,  plats,  and  field  notes  filed  with  the  territorial  engi- 
neer. The  engineer  in  his  decision  based  his  action  on  the  ground  that 
the  project  of  Young  &  Norton  would  be  for  the  best  interest  of  the 
public  because  it  would  enable  people  living  in  that  vicinity  and  under 
the  proposed  ditch  to  purchase  water  at  a  less  price  than  they  might 
have  to  pay  were  the  application  of  Hinderlider  approved. 


"Decision. 

"The  board  is  of  the  opinion  that  the  statute  (§  28,  c.  49,  Laws 
1907)  contemplates  that  the  territorial  engineer  may  reject  an  applica- 
tion if  he  finds  that  the  project  would  be  contrary  to  the  public  interest, 
in  that  it  would  be  a  menace  to  the  public  health  or  safety,  and  not  for 
the  reason  that  a  project  described  in  an  application  subsequently  filed 
might  be  more  advantageous  to  the  owners  of  private  property  in  the 
neighborhood;  and  that  it  was  not  the  intention  of  the  legislature  to  vest 


that  is  done  the  water  master  has  no 
authority  whatever  to  begin  work  as 
such  water  master.  Walker  v.  Elmore 
County,  16  Idaho  696,  102  Pac.  389 
(1909). 

B.      Effect  of. 
An  application  to  the    state    engineer 
for    permission    to    appropriate    public 
water  has  only  the  effect  of  notice  of  an 


intent  to  appropriate.  It  is  not  an  ap- 
propriation, which  can  never  be  com- 
plete until  the  water  is  actually  diverted 
and  put  to  a  beneficial  use.  Sowards  v. 
Meagher    (Utah),   108  Pac.   112    (1910). 

C.      Granting    in    Part. 

Application  may  be  granted   in   part 
for   the   land   for   which   the   project   is 


1910] 


Young  v.  Hindeelidek. 


345 


in  the  territorial  engineer  or  the  board  such  discretionary  powers  as  to 
authorize  him  or  them  to  discriminate  against  a  prior  application  in  favor 
of  one  filed  later,  because  one  project  would  be  less  expensive  than 
another  to  water  users.  The  same  principle  should  govern  with  respect 
to  applications  to  appropriate  water  under  the  New  Mexico  statute  as  in 
the  applications  for  entries  of  lands  under  the  public  land  laws  of  the 
United  States;  the  first  applicant  making  a  filing  in  compliance  with 
the  law  should  be  recognized,  and,  if  he  shall  subsequently  comply  with 
the  regulations  and  statutes,  his  application  should  be  approved,  unless 
the  project  is,  in  the  opinion  of  the  engineer,  a  menace  to  the  public 
health  or  safety,  or  unless  there  is  no  water  available  under  the  application. 

"In  the  present  case  the  testimony  shows  that  there  is  unappropriated 
flood  water  available,  and  that  while  it  is  claimed  that  the  project  of 
Young  &  Norton  might  be  more  advantageous  to  the  protestants,  never- 
theless, the  project  described  in  the  prior  application  is  feasible,  and  its 
approval  would  not  be  contrary  to  the  public  interest.  The  board  believes 
that  the  interest  of  the  owners  of  the  land  under  the  proposed  ditches  and 
reservoir  who  may  desire  to  become  water  users  under  the  project  are 
*mply  protected  by  the  provisions  of  law  which  require  owners  of  such 
works  to  supply  water  at  reasonable  rates. 

"If  the  board  could  take  into  consideration  the  question  of  benefits  to 
the  public  from  the  construction  of  the  respective  projects,  it  would  be 
manifestly  more  to  the  benefit  of  the  public,  being  the  people  of  the 
Territory  of  New  Mexico,  or  the  people  of  San  Juan  County,  N.  M., 
to  have  the  larger  project  constructed  which  would  furnish  water  to  irri- 
gate 14,000  acres,  than  a  smaller  one  to  cover  only  about  5,000  acres; 
and  it  would  be  exceedingly  detrimental  to  the  interests  of  all  the  people 
of  the  territory  if  a  bona  fide  application  by  one  who  had  complied  with 
all  the  requirements  of  the  statute  and  the  rules  and  regulations  estab- 
lished by  the  territorial  engineer  were  to  be  rejected  upon  such  grounds 
in  favor  of  an  application  subsequently  filed.  It  is  certainly  to  the  inter- 
est of  the  territory  that  outside  capital  be  invited  and  encouraged  to 
construct  irrigation  works  in  the  territory,  and  that  the  law  relating  to 


available  or  feasible.     Young  v.  Hinder- 
lider,  principal  case. 

V.  Powers  and  Duties. 
A.  To  Enforce  Decrees. 
The  primary  duty  of  water  commis- 
sioners and  engineers  is  to  enforce  de- 
crees fixing  the  rights  of  consumers. 
Boulder  &  Left  Hand  Ditch  Co.  v. 
Hoover,  48  Colo.  343,  110  Pac.  75. 


B.     To  Prevent  Waste,  etc. 

Water  commissioners  and  engineers 
may  prevent  waste,  and  insist  upon 
economical  use.  Boulder  &  Left  Hand 
Ditch  Co.  v.  Hoover,  48  Colo.  343,  110 
Pac.    75. 

Under  the  Colorado  statute  the  water 
commissioner  is  not  required  nor  is  it  his 
duty  to  make  any  division  or  distribution 
of  the  water  between  the  users  thereof 


346 


Water  and  Mineral  Cases.         [New  Mexico 


water  rights  be  consistently  enforced  so  as  to  protect  those  who  in  good 
faith  initiate  such  enterprises. 

"For  the  foregoing  reasons  the  decision  of  the  territorial  engineer  in 
rejecting  the  application  of  M.  C.  Hinderlider,  and  in  approving  the 
subsequent  application  of  Young  &  Norton,  in  so  far  as  the  same  includes 
any  rights  covered  by  the  prior  application,  is  hereby  reversed,  and  the 
territorial  engineer  is  directed  to  approve  the  said  application  of  M.  C. 
Hinderlider. 

"[Signed]  Charles  Springer, 

"President  Board  of  Water  Commissioners." 


The  protestants,  Young,  Norton,  and  others,  appealed  from  the  de- 
cision of  the  water  commissioners  to  the  district  court  of  San  Juan  County, 
in  which  the  cause  was  heard  November  17,  1909,  on  an  agreed  statement 
of  facts,  which  is  in  words  and  figures  as  follows: 

"(1)  On  the  1st  day  of  October,  1907,  M.  C.  Hinderlider  filed  with 
the  territorial  engineer  an  application  for  a  permit  to  appropriate  two 
hundred  second  feet  of  the  flow  of  the  La  Plata  River,  in  San 
Juan  County,  N.  M.,  and  for  the  construction  of  a  storage  reservoir 
with  a  storage  capacity  of  12,406  acre  feet,  all  for  the  purpose  of  re- 
claiming and  irrigating  about  14,000  acres  of  land  in  said  county  and 
territory. 

"(2)  On  December  20,  1907,  these  protestants  filed  with  the  territorial 
engineer  an  application  for  a  permit  to  appropriate  the  waters  of  the 
same  stream  in  the  same  county  and  territory  for  the  purpose  of  reclaim- 
ing and  irrigating  about  5,000  acres  of  land,  being  a  part  of  the  same 
lands  covered  by  the  Hinderlider  project.  The  said  application  included 
the  construction  of  a  storage  reservoir  with  a  storage  capacity  of  10,149.3 
acre  feet,  for  the  purpose  of  holding  and  storing  the  flood  waters  of  said 
La  Plata  River  and  applying  same  to  the  reclamation  of  said  5,000  acres 
of  land. 

"(3)  That  on  March  19,  1908,  these  protestants  filed  with  the  terri- 
torial engineer  a  protest  against  the  approval  of  the  said  Hinderlider 


from  the  same  ditch,  neither  has  he  any 
authority  to  interfere  with  the  internal 
management  of  the  affairs  of  a  ditch 
company,  but  it  is  his  duty  to  turn  into 
a  ditch  no  more  water,  to  which 
it  may  be  entitled  to  by  vir- 
tue of  a  decree,  than  is  necessary  to 
serve  the  needs  of  the  consumer  under 
such  ditch,  and  to  refuse  to  turn  water 
into  any  ditch  for  the  use  of  one  not  en- 


titled thereto.  Cache  La  Poudre  Irriga- 
tion Ditch  Co.  v.  Hawley,  43  Colo.  32, 
95  Pac.  317   (1908). 

C.      Cannot  Affect   Prior  Appro- 
priator. 

State  engineer  has  no  power  to  grant 
right  to  use  water  from  stream  the  en- 
tire amount  of  which  has  been  appro- 
priated prior  thereto.    Lockwood  v.  Free- 


1910] 


Young  v.  Hindeblidee. 


347 


application,  alleging  among  other  things  that  the  protestants  are  all  actual 
settlers  or  entry  men  upon  the  land  proposed  to  be  watered,  aggregating 
5,000  acres;  that  protestants  believe  that  they  can  conduct  water  to  their 
land  at  an  approximate  expense  of  eleven  dollars  an  acre,  and  that  pro- 
testants are  financially  able  to  immediately  proceed  with  the  construction 
of  the  proposed  ditch  and  reservoir;  that  if  their  application  be  allowed 
they  will  at  once  proceed  with  the  construction  of  the  said  ditch  and  reser- 
voir and  will  have  their  lands  under  water  for  the  season  of  1909;  that 
they  could  not  positively  state  what  the  water  would  cost  per  acre  for 
the'r  use  on  their  lands,  if  they  must  purchase  it  from  Mr.  Hinderlider, 
but  that  they  were  credibly  informed  and  believe  that  the  cost  of  the  same 
would  be  from  thirty  to  forty  dollars  per  acre ;  that  the  application  of  the 
said  Hinderlider  was  made  for  speculative  purposes  and  for  the  personal 
benefit  of  the  applicant,  while  the  application  of  protestants  was  made 
for  the  benefit  of  actual  settlers  upon  the  land. 

"(4)  That  after  a  hearing  the  territorial  engineer  on  July  20,  1908, 
rendered  an  opinion  sustaining  said  protest,  rejecting  the  Hinderlider  ap- 
plication, and  approving  the  application  of  protestants,  findings  as  per 
copy  of  said  decision  herein  filed. 

"(5)  That  thereupon  the  said  M.  C.  Hinderlider  appealed  from  the 
decision  of  said  territorial  engineer  to  the  board  of  water  commissioners 
of  this  territory,  which  board,  after  hearing  the  evidence  and  argument 
of  counsel,  reversed  the  decision  of  the  said  engineer,  findings  as  per  copy 
of  their  decision  herein  filed. 

"(6)  That  the  said  M.  C.  Hinderlider  is  financially  able  to  imme- 
diately proceed  with  the  construction  of  the  said  ditch  and  reservoir. 

"(7)  From  said  decision  of  said  board  these  protestants  have  taken 
this  appeal  to  this  court." 

That  court  sustained  and  affirmed  the  decision  of  the  board  of  water 
commissioners,  to  which  action  Young,  Norton,  and  others  excepted  and 
brought  the  matter  to  this  court  on  appeal. 

For  appellants — Martin  &  Edwards. 

For  appellee— E.  C.  Abbott  and  H.  C.  Allen. 


man,  15  Idaho  395,  98  Pac.  295  (1908). 
License  by  state  engineer  cannot  have 
the  effect  of  depriving  a  prior  appropria- 
tor  of  water  to  which  he  is  entitled. 
Lockwood  v.  Freeman,  15  Idaho  395,  98 
Pac.  295   (1908). 

D.      Not  to   Litigate  Disputes. 

Water    commissioners    and     engineers 
have  no   power  to  litigate  disputes   be- 


tween claimants  under  decrees  fixing 
their  respective  rights.  Boulder  &  Left 
Hand  Ditch  Co.  v.  Hoover,  48  Colo.  343, 
110  Pac  75. 

E.      Not  to    Impeach    Decrees. 

It  is  neither  the  duty  nor  privilege  of 

water  commissioners,   division  engineers, 

or  the  state  engineer,  to  question  decrees 

fixing    water    rights,    where    regular    in 


348 


Water  and  Mineral  Cases.         [New  Mexico 


ABBOTT,  J.  (after  stating  the  facts).  We  think  the  decision  of  the 
district  court  was  justified  and  probably  required  by  the  statement  of 
facts  on  which  it  was  heard;  but  we  find  that  statement  very  incomplete 
and  unsatisfactory  as  the  basis  of  a  decision  in  such  a  cause.  If  it  were 
a  matter  of  private  interest  alone,  a  question  simply  between  two  rival 
applicants  for  the  right  to  use  the  waters  in  question,  we  should  content 
ourselves  with  affirming  the  decision  of  the  district  court.  But  the  ques- 
tion is  much  broader  than  that,  and  includes  the  public  interest  as  well, 
by  the  terms  of  the  statute  under  which  the  territorial  engineer,  the 
water  commissioners,  and  the  courts  have  jurisdiction  of  the  subject- 
matter. 

The  view  apparently  adopted  by  the  water  commissioners  in  their 
decision  that  the  power  of  the  territorial  engineer  to  reject  an  application, 
"if  in  his  opinion  the  approval  thereof  would  be  contrary  to  the  public 
interest"  (section  28),  is  limited  to  cases  in  which  the  project  would  be 
a  menace  to  the  public  health  or  safety  is,  we  think,  not  broad  enough. 
There  is  no  such  limitation  expressed  in  terms  in  the  statute,  and  we  think 
not  by  implication.  The  declaration  in  the  first  section  of  the  statute 
that  the  waters  therein  described  are  "public  waters,"  and  the  fact  that 
the  entire  statute  is  designed  to  secure  the  greatest  possible  benefit  from 
them  for  the  public,  should  be  borne  in  mind.  It  is,  for  instance,  obviously 
for  the  public  interest  that  investors  should  be  protected  against  making 
worthless  investments  in  New  Mexico,  and  especially  that  they  should 
not  be  led  to  make  them  through  official  approval  of  unsound  enterprises. 
If  there  is  available  unappropriated  water  of  the  La  Plata  River  for  only 
5,000  or  6,000  acres  of  land,  it  would  be  contrary  to  the  public  interest 
that  a  project  for  irrigating  14,000  acres  with  that  water  should  receive 
an  official  approval  which  would,  perhaps,  enable  the  promoters  of  it 
to  market  their  scheme,  to  sell  stock  reasonably  sure  to  become  worthless, 
and  land  which  could  not  be  irrigated  at  the  price  of  irrigated  land. 
Such  a  proceeding  would  in  the  end  result  only  in  warning  capital  away 
from  the  territory.  The  failure  of  any  irrigation  project  carries  with  it 
not  only  disastrous  consequences  to  its  owners  and  to  the  farmers  who 


form  and  in  force  and  effect,  or  to  at- 
tempt to  impeach  or  nullify  them,  or  in 
any  way  impair  their  efficiency.  Boulder 
&  Left  Hand  Ditch  Co.  v.  Hoover,  48 
Colo.  343,  110  Pac.  75. 

F.      Not  to  Change  the  Use. 

Water  commissioners  and  engineers 
have  no  power  to  decide  upon  the  right 
to    change    the    place    of    use    of    water. 


Boulder     &    Left    Hand     Ditch     Co.    v. 
Hoover,  48  Colo.  343,  110  Pac.  75. 

G.      To  Extend  Time. 

Under  the  Utah  statute  the  state  en- 
gineer has  large  discretionary  power 
and  may  extend  the  time  for  completion 
of  appropriation  beyond  that  first  fixed 
by  him,  if  within  the  statutory  time,  al- 
though   the  application  was    not    made 


1910] 


Young  v.  Hinderlider. 


349 


are  depending  on  it,  but  besides  tends  to  destroy  faith  in  irrigation  enter- 
prises generally. 

It  may  be  said  that  the  territorial  engineer  could  have  approved  the 
Hinderlider  project  for  the  number  of  acres  which  could  be  irrigated  from 
it.  He  makes  it  clear,  however,  from  his  report,  that  the  cost  of  the 
works  for  that  project  would  be  much  greater  than  for  works  fit  to 
irrigate  the  land  which  could  really  be  irrigated  from  the  available  water 
there.  While  that  element  is  not  conclusive  on  the  question  of  public 
interest,  we  think  it  should  be  taken  into  account.  It  may  be  that,  of  the 
5,000  or  6,000  acres  there  which  it  is  claimed  can  be  irrigated  at  an 
expense  of  ten  or  twelve  dollars  per  acre  under  the  Young-Norton 
project,  a  thousand  acres  could  be  irrigated  at  five  dollars  per  acre 
because  of  its  being  at  a  lower  level  or  nearer  the  water  than  the  other 
land.  But  that  would  not  justify  refusing  the  owners  of  the  other 
4,000  or  5,000  acres  the  privilege  of  irrigating  their  lands,  under  a 
plan  which  would  increase  the  cost  of  irrigation  to  the  owners  of  the 
thousand  acres.  And  the  same  may  be  said  of  the  Hinderlider  project 
as  compared  with  the  Young-Norton  project.  The  mere  fact  that  irri- 
gation under  the  former  project  would  cost  more  per  acre  than  under  the 
latter  is  not  conclusive  that  the  former  project  should  be  rejected.  But 
the  attempt  to  cover  too  much  land  may  have  gone  so  far  that  the  cost 
of  irrigation  under  that  project  would  be  so  excessive  that  the  owners 
of  land  under  the  project  could  not  pay  the  water  rates  and  farm  their 
lands  at  a  profit.  The  statute  provides  that  the  charges  for  irrigation 
shall  be  "reasonable;"  but  what  is  reasonable  in  any  case  must  depend 
largely  on  the  cost  of  constructing  and  operating  the  irrigation  works. 

The  agreed  statement  of  facts  on  which  the  judgment  of  the  district 
court  is  based  may  be  held  to  include  by  reference  the  findings  of  the 
territorial  engineer  and  those  of  the  board  of  water  commissioners, 
although  it  is  not  made  clear  that  they  are  to  be  a  part  of  the  stipulated 
facts,  as  it  should  be  if  that  was  the  intention  of  the  parties.  Even  if 
they  are  to  be  considered,  we  are  still  without  proper  material  for  a 
conclusion.  The  territorial  engineer  finds  that  the  Young-Norton  project 
is  "better  within  the  available  water  supply."      But  that  furnished  no 


until  after  the  time  first  fixed  expired. 
Pool  v.  Utah  County  Light  &  Power  Co., 
36  Utah  508,   105  Pac.  289    (1909). 

VI.      Officers  de   Facto. 

Where  the  right  to  office  was  not  ques- 
tioned, and  one  acting  as  collector  of  an 
irrigation  district  sold  the  property  un- 
der an  assessment,  the  sale  will  not  be 
held  invalid  because  such  officer  was  not 


eligible  to  the  office  on  account  of  resi- 
dence, his  acts  being  good  as  an  officer 
de  facto  although  he  may  not  have  been 
an  officer  de  jure.  Baxter  v.  Dickinson, 
136  Cal.  185,  68  Pac.  601   (1902). 

As  to  irrigation  districts  in  general 
and  the  powers  and  duties  of  officers 
thereof,  see  note  to  Pioneer  Irrigation 
Dist.  v.  Oregon  Short  Line,  ante,  pp. 
5,  53. 


350 


Water  and  Mineral  Cases.         [New  Mexico 


reason  why  he  should  not  have  approved  the  earlier  project  for  the 
amount  of  land  there  is  water  for.  He  does  not  find  that  the  cost  of  water 
under  the  Hinderlider  project  would  be  prohibitory  or  excessive,  but  only 
that  it  would  be  considerably  greater  per  acre  than  under  the  Young- 
Norton  project.  The  price  which  the  owners  of  land  can  afford  to  pay  for 
irrigation  must  depend  in  part  on  the  use  to  which  it  can  be  put. 

For  ordinary  farm  crops  forty  dollars  per  acre  for  water  might  be 
prohibitory,  while  for  fruit  or  garden  truck  in  certain  localities  it  might 
not  be  excessive.  But  neither  the  territorial  engineer  nor  the  water 
commissioners  have  touched  on  that  point  in  their  reports.  The  terri- 
torial engineer  apparently  bases  his  approval  of  the  latter  project  as 
against  the  former  on  the  fact  that  Young  and  Norton  and  their  asso- 
ciates are  actual  settlers  on  the  land,  while  Hinderlider  is  not  a  resident 
of  the  territory.  We  do  not  say  this  circumstance  should  have  no  weight 
in  determining  the  question  of  the  public  interest,  but  we  think  it  should 
not  outweigh  the  other  considerations  to  which  we  have  referred. 

On  the  other  hand,  the  water  commissioners  find  that  there  is  available 
unappropriated  flood  water  of  the  La  Plata  River,  but  do  not  find  whether 
there  is  enough  for  14,000  or  any  other  number  of  acres,  nor  whether 
the  cost  of  the  Hinderlider  project  would  be  such  as  necessarily  to  make 
the  irrigation  charges  under  it  prohibitory  or  excessive. 

We  find  in  Armijo  v.  County  Commissioners,  11  N.  M.  294,  67  Pac. 
730,  a  precedent  for  the  course  which  we  think  it  advisable  to  pursue 
in  this  matter. 

The  cause  is  therefore  remanded  to  the  district  court  to  obtain  facts 
through  the  water  commissioners  and  territorial  engineer,  or  by  agreement 
of  counsel,  or  otherwise,  essential  to  a  satisfactory  decision  of  the  cause. 
It  is  not  meant  to  limit  the  district  court  to  the  precise  points  we  have 
named,  but  to  leave  the  matter  open  for  the  introduction  of  any  facts 
bearing  on  the  question  of  public  interest.  And  the  judgment  of  the 
district  court  is  set  aside  in  order  that  it  may  on  further  consideration 
render  such  decision  as  it  shall  deem  proper. 

POPE,  C.  J.,  and  PARKER,  MECHEM,  and  WRIGHT,  JJ.,  concur. 
McFIE,  J.,  having  heard  this  cause  in  the  district  court,  did  not  partici- 
pate in  this  decision. 


As  to  the  powers  and  duties  of  commis- 
sioners and  other  officers  of  drainage  dis- 
tricts, see  note  to  Seibert  v.  Lovell,  ante, 
p.  261. 

As  to  obligation  to  return  surplus 
water    after    use,    see    note   to    Windsor 


Reservoir  and  Canal  Co.  v.  Hoffman  Ditch 

Co.,  p.  ,  vol.  2,  this  series. 

As  to  appropriation  of  waters  of 
spring,  see  I,  C,  note  to  Hollett  v.  Davis, 
post,  p.  419. 


1910] 


Vandeewokk  v.  Hewes  et  al. 


351 


VANDERWORK  (Territory  of  New  Mexico,  Intervenor)  v.  HEWES  et  al. 

[Supreme  Court  of  New  Mexico,  August  9,  1910.] 

15  N.  M.  439,  110  Pac.  567. 

1.  Waters   and   Water   Courses — Public   and    Private   Waters — Jurisdiction 

of  Territorial   Engineer. 
The  laws  of  1907,  providing  that  the  territorial  engineer  shall  have  supervision 
of  the  apportionment  of  waters,  etc.,  do  not  relate  to  waters  held  in  private  owner- 
ship or  by  prior  appropriation,  but  only  to  public  and  unappropriated  waters  within 
the  territory. 

2.  Same — Percolating  and  Seepage  Waters  Are   Not  Public. 

Section  1  of  Act  of  1907,  providing  that  all  natural  waters  flowing  in  streams 
and  water  courses,  whether  such  be  perennial  or  torrential,  within  the  limits  of 
the  Territory  of  New  Mexico,  belong  to  the  public  and  are  subject  to  appropriation 
for  beneficial  use,  does  not  apply  to  seepage  or  percolating  waters  or  spring  waters 
appearing  upon  private  lands  from  unknown  causes. 

3.  Same — Jurisdiction   of  Territorial    Engineer  Over. 

The  territorial  engineer's  jurisdiction,  with  the  exception  of  seepage  water  re- 
ferred to  in  section  53,  is  limited  to  such  public  waters  as  are  embraced  in 
section  1. 

4.  Same — Seepage    Waters — Application    of   Term. 

The  term  seepage  waters,  as  used  in  section  53  of  the  Act  of  1907,  applies  only  to 
constructed  reservoirs,  ditches,  etc. 

5.  Same — Seepage    or     Spring      Water    on      Private      Lands — Not      Public 

Waters. 

Section  53  of  Act  of  1907  has  no  application  to  seepage  or  spring  water  arising 
upon  private  lands  from  an  unknown  source. 

6.  Same — Not  Subject  to  Appropriation — But  Surplus  Is. 

Seepage  or  spring  water,  appearing  upon  land  of  private  proprietor,  is  not  subject 
to  appropriation  and  distribution  under  the  Laws  of  1907,  but  any  surplus  re- 
maining after  the  reasonable  necessities  of  the  proprietor  of  the  land  upon  which 
the  spring  is  situated  and  those  of  an  adjoining  owner  to  whom  he  has  granted  the 
right  to  use  the  waters,  may  be  appropriated  under  the  general  law  of  appro- 
priation of  waters. 

7.  Same — Owner    of    Land    May    Use    without    Application     to     Territorial 

Engineer. 

Where  seepage  or  spring  water  appears  upon  the  land  of  a  private  proprietor, 
he  has  the  right  to  the  use  thereof,  and  it  is  not  required  that  he  apply  to  the 
territorial  engineer  for  permission  to  appropriate  the  same. 

Plaintiff  applied  to  territorial  engineer  for  right  to  appropriate  certain 
waters,  to  which  defendants  protested.     Application  granted  and  action 


As  to  appropriation  of  waters  of 
spring,  see  I,  C,  note  to  Hollett  v. 
Davis,  post,  p.  419. 

As   to   jurisdiction   of   water   commis- 


sioners and  officers  of  similar  character, 
see  note  to  Young  v.  Hinderlider,  ante, 
p.  339. 


352  Water  and  Mineral  Cases.         [New  Mexico 

of  territorial  engineer  reversed  upon  appeal  to  board  of  water  commis- 
sioners, and  protest  sustained,  from  which  appeal  taken  to  district  court 
and  action  of  commissioners  sustained.  Appeal  from  such  judgment. 
Affirmed. 

From  the  opinion  of  Hon.  William  H.  Pope,  the  presiding  judge  who 
tried  the  case  in  the  court  below,  we  adopt  the  following  statement  of 
facts,  disclosed  by  the  record,  and  upon  which  a  reversal  is  sought  in  this 
court:  "That  some  time  in  the  latter  part  of  the  year  1906  there  ap- 
peared upon  the  surface  of  the  land  of  J.  M.  Hewes,  one  of  the  con- 
testants, seepage  water  or  spring  water,  from  some  unknown  source,  at 
a  place  where  there  had  been  no  seepage  or  spring  water  for  at  least 
five  years  previous.  That  the  flow  increased  during  the  winter  of  1906-07, 
diminished  during  the  summer  of  1907,  and  again  increased  during  the 
fall  of  1907  to  such  an  extent  that  it  spread  over  the  road  and  onto 
adjoining  land  of  E.  O.  Dean,  contestant  herein,  and  that  by  reason 
of  an  embankment  constructed  on  the  land  of  said  E.  O.  Dean  across  a 
draw  or  swale  the  water  backed  over  the  public  road.  The  road  overseer 
of  that  district  requested  permission  of  Dean  to  cut  the  embankment 
and  allow  the  water  to  flow  down  upon  the  land  of  Dean  and  relieve 
the  public  road.  To  this  Dean  consented,  provided  that  he  be  allowed 
to  make  use  of  the  water  for  irrigating  his  lands,  and  to  construct  a 
ditch  to  convey  the  water  to  his  farm  lands  for  that  purpose.  About  the 
same  time,  or  subsequently  thereto,  Dean  secured  permission  from  said 
Hewes  to  so  use  the  water  and  did  construct  a  ditch  for  that  purpose. 
The  court  further  finds  that  on  February  6,  1908,  Fred  Vanderwork, 
applicant  named  above,  filed  an  application  in  the  office  of  the  terri- 
torial engineer  for  a  permit  to  appropriate  the  water,  claiming  it  to  be 
subject  to  appropriation  under  chapter  49,  Laws  1907,  the  plan  of 
Vanderwork,  as  shown  by  his  plats  and  field  notes,  being  to  construct 
a  deep  ditch  through  the  land  of  Hewes  so  as  to  carry  off  the  water  and 
convey  it  by  ditch  a  distance  of  about  one  mile,  in  order  to  use  the  same 
for  irrigating  lands  belonging  to  Vanderwork.  After  publication  of 
notice,  protest  was  filed  by  said  Hewes  and  Dean.  Upon  a  hearing  on 
the  protest  by  the  territorial  engineer,  he  dismissed  the  protest  and  ap- 
proved the  application  of  Vanderwork.  From  this  decision  Hewes  and 
Dean  appealed.  By  agreement  of  counsel  the  appeal  was  submitted  to 
the  board  of  water  commissioners  upon  briefs  and  the  affidavits  and  rec- 
ords in  the  office  of  the  territorial  engineer,  and  the  board  of  water 
commissioners,  after  hearing  and  considering  same,  reversed  the  findings 
and  holdings  of  the  territorial  engineer,  and  found  that  the  water  in 
controversy  was  not  subject  to  appropriation  by  Vanderwork,  where- 
upon Vanderwork  has  appealed  said  controversy  to  this  court." 


1910]  Vandekwoek  v.  Hewes  et  al.  353 

For  appellant — Reid  &  Hervey. 

For  appellees — Grantham  &  Dye. 

McFIE,  J.  (after  stating  the  facts).    The  main  question  for  our  con- 
sideration is  whether  or  not  the  water  involved  in  this  controversy  is 
public  water,  subject  to  distribution  by  the  territorial  engineer  under 
chapter  49,  Laws  1907.    It  is  clear  that  the  application  of  Vanderwork 
for  the  appropriation  of  the  water  was  made  under  that  law  and  the 
permission  granted  by  the  engineer  for  the  use  of  the  water  upon  the 
lands  of  Vanderwork  necessarily  assumes  that  the  water  which  arises 
upon  Hewes'  land  is  subject  to  distribution  under  the  provisions  of  Act 
of  1907.    Section  12,  c.  29,  Laws  1907,  provides  as  follows:    "The  terri- 
torial engineer  shall  have  the  supervision  of  the  apportionment  of  the 
water  in  this  territory,  according  to  the  licenses  issued  by  him  and  his 
predecessors  and  the  adjudications  of  the  courts."     This  section,  how- 
ever, cannot  be  held  to  relate  to  waters  held  in  private  ownership  or 
by  prior  appropriation,  but  must  be  held  to  relate  to  public  and  unap- 
propriated waters  within  the  territory.     Section  1  of  the  Act  of  1907 
makes  this  clear,  as  it  provides  that  "all  natural  waters  flowing  in  streams 
and  water  courses,  whether  such  be  perennial  or  torrential,  within  the 
limits  of  the  territory  of  New  Mexico,  belong  to  the  public,  and  are  sub- 
ject to  appropriation  for  beneficial  use."     This  section  expressly  limits 
the  operation  of  the  Act  of  1907  to  natural  public  waters  within  the  terri- 
tory of  New  Mexico,  with  the  further  limitation  that  it  is  water  flowing 
in  streams  and  water  courses.     This  section  necessarily  indicates  the 
character  of  the  waters  to  which  the  engineer's  jurisdiction  attaches  for 
purposes  of  distribution,  as  provided  for  in  the  act,  with  the  single  ex- 
ception of  the  seepage  water  referred  to  in  section  53  of  that  Act.  ^  The 
legislature  therefore  did  not  confer  upon  the  territorial  engineer  jurisdic- 
tion for  the  distribution  of  all  the  waters  within  the  territory,  but  only 
over  such  public  waters  as  are  embraced  in  section  1,  and  the  seepage 
waters  referred  to  in  section  53,  subject  to  the  conditions  therein  ex- 
pressed. 

The  case  at  bar  seems  to  furnish  an  excellent  illustration  erf  the  cor- 
rectness of  the  above  construction.  In  the  first  place,  it  is  admitted  that 
the  water  involved  in  this  case  does  not  come  from  a  stream  or  water 
course,  as  defined  in  section  1  of  the  Act  of  1907,  but,  on  the  contrary, 
its  source  is  unknown.  Such  being  the  case,  it  is  not  contended  by  ap- 
pellant that  this  water  comes  from  either  a  stream  or  water  course.  That 
it  is  seepage  or  percolating  water  seems  to  be  accepted  by  all  parties. 
In  fact,  appellant's  application  for  permit  states  that  it  is  seepage  water 
and  not  tributary  to  any  stream.  Clearly,  then,  the  territorial  engineer 
W.   &  M—  23 


354  Water  and  Mineral  Cases.         [New  Mexico 

had  no  authority  to  grant  Vanderwork  a  permit  to  take  this  water  under 
section  I  of  the  Act  of  1907,  but  his  authority  to  act  must  be  found  in 
section  53,  if  such  authority  existed.  Section  53  is  as  follows:  "In 
the  case  of  the  seepage  water  from  any  constructed  works  the  owner 
of  such  works  shall  have  had  the  first  right  to  the  use  thereof  upon  filing 
an  application  with  the  territorial  engineer,  as  in  the  case  of  an  original 
appropriation,  but  if  such  owner  shall  not  file  said  application  within  one 
year  after  the  completion  of  such  works,  or  the  appearance  upon  the 
surface  of  such  seepage  water,  any  party  desiring  to  use  the  same  shall 
make  an  application  to  the  territorial  engineer,  as  in  the  case  of  unap- 
propriated water,  and  such  party  shall  pay  to  the  owner  of  such  works 
reasonable  charge  for  the  storage  or  carriage  of  such  water  in  such 
works :  Provided,  that  the  appearance  of  such  seepage  water  can  be  traced 
beyond  a  reasonable  doubt  to  the  storage  or  carriage  of  water  in  such 
works."  Under  the  above  section  the  only  seepage  water  over  which  the 
engineer  has  power  to  grant  permits  for  appropriation  by  applicants  is 
seepage  water  from  "constructed  works."  The  term  "constructed  works" 
is  used  in  many  of  the  sections  of  the  Act  of  1907,  and,  as  was  held  by 
the  board  of  water  commissioners,  in  its  opinion  overruling  the  territorial 
engineer,  refers  to  constructed  reservoirs  and  ditches.  There  being  no 
proof  of  any  such  constructed  works,  or  proof  that  the  seepage  water 
came  from  such  works,  the  engineer  was  without  authority  under  that 
section  to  grant  permits  for  its  appropriation  by  the  appellant;  and  this 
is  true  regardless  of  whether  the  owner  of  the  land  upon  which  the  water 
appeared  applied  for  its  appropriation  or  not.  It  is  true  that  one  witness 
was  of  the  opinion  that  the  water  came  from  a  dynamited  artesian  well 
three-fourths  of  a  mile  away.  This,  of  course,  was  only  a  speculative 
opinion  of  the  witness.  Even  if  true,  it  would  be  immaterial,  as  this  well 
would  not  be  constructed  works  within  the  act.  These  sections  are  the 
only  sections  in  the  Act  of  1907  conferring  authority  upon  the  territorial 
engineer  to  grant  permits  or  licenses  for  the  appropriation  of  water,  and 
as  the  waters  for  the  use  of  which  the  engineer  granted  the  appellant 
a  permit  were  not  of  the  character  embraced  in  either  section  1  or  53, 
but  were  seepage  or  percolating  waters  from  an  unknown  source,  the 
lower  court  correctly  held  that  the  territorial  engineer  had  no  jurisdic- 
tion over  such  waters  and  no  power  to  grant  appellant  a  permit  to  ap- 
propriate them. 

Counsel  for  appellant  further  contends  that,  although  appellant's  permit 
for  the  appropriation  of  the  water  on  Hewes'  land  may  not  be  upheld, 
he  has  a  superior  right  by  virtue  of  his  attempted  appropriation  as  against 
Dean,  and  even  Hewes,  the  owner  of  the  land  upon  which  the  water  ap- 
pears upon  the  surface,  except  as  to  so  much  as  may  be  applied  to  a  bene- 


1910]  Vandebwobk  v.  Hewes  et  al.  355 

ficial  use  by  Hewes  upon  his  own  land.  Counsel,  in  his  able  brief,  pre- 
sents a  line  of  authorities  supporting  the  doctrine  of  "a  reasonable  use" 
rather  than  ownership  of  seepage  or  percolating  waters  upon  lands  in 
private  ownership,  and  in  a  proper  case  these  cases  would  have  great 
force,  but  in  our  opinion  the  present  case  does  not  come  within  the  doc- 
trine laid  down  in  Katz  v.  Walkinshaw,  141  Cal.  116,  70  Pac.  663,  74  Pac. 
766,  64  L.  R.  A.  236,  99  Am.  St.  Rep.  35,  a  leading  case  upon  this  sub- 
ject. This  case  and  many  others  involve  the  disposition  of  percolating 
water  from  large  areas  of  land  saturated  with  artesian  water,  and  the 
same  rules  of  law  pertaining  to  surface  and  subterranean  streams  is  held 
to  be  applicable  to  such  water,  notwithstanding  such  water  is  not  in  a 
channel  with  well-defined  bed  and  banks,  the  accepted  definition  of 
streams  and  water  courses.  The  case  at  bar  is  entirely  different,  in  this, 
that  a  small  quantity  of  water  percolates  to  the  surface  and  forms  a 
small  basin  wholly  upon  the  lands  of  Hewes,  and  coming  from  a  source 
unknown,  so  far  as  the  record  discloses.  While  this  water  sometimes  re- 
cedes to  the  point  of  disappearance  and  returns  again  to  the  surface,  it 
spreads  over  a  part  of  Hewes'  land  at  times  and  upon  a  portion  of  the 
lands  of  Dean,  an  adjoining  owner.  It  must  be  conceded  that  for  many 
years  the  law  as  to  such  waters  has  been  that  the  water  was  a  part  of  the 
land,  and  that  each  landowner  could  do  with  it  as  he  chose.  Southern 
Pacific  R.  Co.  v.  Dufour,  95  Cal.  615,  30  Pac.  783,  19  L.  R.  A.  92. 

The  case  of  Metcalfe  v.  Nelson,  8  S.  D.  87,  65  N.  W.  911,  59  Am.  St. 
Rep.  746,  we  regard  as  directly  in  point  under  the  facts  in  this  case.  The 
court  in  that  case  says :  "As  the  hidden  water  in  the  plaintiff's  soil  be- 
longed to  him  as  a  part  of  it,  he  might,  by  artificial  means,  separate  it 
from  the  soil,  and  it  would  still  belong  to  him.  He  might  sink  a  well, 
into  which  such  water  would  work  its  way,  and  the  accumulation  in  the 
well  would  still  be  his,  and  subject  to  his  proprietary  control.  Davis  v. 
Spaulding,  157  Mass.  431,  32  N.  E.  650,  19  L.  R.  A.  102.  If  the  water 
which  fills  this  spring  is  not  subject  to  the  law  of  running  streams,  but 
to  that  of  percolating  water,  did  the  plaintiff  lose  his  ownership  of  it 
when  it  appeared  upon  the  surface?  If  a  cloud  had  burst  on  plaintiff's 
land,  and  filled  a  cavity  thereon  with  rain,  it  would,  while  so  confined,  be- 
long to  plaintiff,  and  we  are  unable  to  see  why  or  how  the  question  of 
ownership  can  be  made  to  depend  upon  which  way  the  water  comes  from. 
Suppose  this  percolating  water  appeared  at  the  surface  only  at  the  point 
of  the  spring,  and  at  once  sunk  away  again  into  the  surrounding  soil, 
resuming  its  character  of  wandering,  seeping  water,  would  the  plaintiff's 
proprietary  rights  come  and  go  with  the  appearance  and  disappearance 
of  the  water  ?  It  must  be  remembered  that  we  are  not  dealing  with  a  run- 
ning stream,  or  with  riparian  rights,  but  simply  with  percolating  waters 


356  Water  and  Mineral  Cases.         [New  Mexico 

which  have  combined  and  struggled  to  the  surface  on  plaintiff's  land.  We 
think  the  plaintiff  had  more  than  the  ordinary  usufruct  in  the  water  of 
this  spring,  so  long,  at  least,  as  it  was  held  in  the  spring.  He  might  con- 
sume or  dispose  of  it  all  if  he  chose.  He  might  convey  it  away  in  pipes, 
or  carry  it  off  in  tanks.  If  medicinal,  he  might  bottle  it,  and  sell  it  for 
the  healing  of  the  nations.  It  would  be  inconsistent  with  the  maintenance 
of  such  right  in  plaintiff  to  allow  that  the  defendant  or  any  other  stran- 
ger had  also  the  right,  in  hostility  to  the  plaintiff,  to  take  and  carry  away 
water  from  the  same  spring.  While  it  may  not  be  technically  correct  to 
say  that  the  landowner  is  the  absolute  owner  of  percolating  waters 
gathered  into  a  spring  or  well,  such  is  often  the  expression  of  the  courts 
and  text-writers,  and  probably  means  what  in  respect  to  water  is  practi- 
cally equivalent  to  ownership — the  exclusive  right  to  use  and  dispose  of 
it.  While  the  precise  question  presented  by  this  case  appears  to  be  novel, 
there  are  many  cases  which  recognize  the  right  of  the  owner  of  land  upon 
which  a  spring  so  appears  to  sell  and  dispose  of  the  right  to  all  or  a  por- 
tion of  the  water  it  supplies." 

The  court  below  affirmed  the  decision  of  the  board  of  water  commis- 
sioners, overruling  the  territorial  engineer  in  granting  Vanderwork  a  per- 
mit to  appropriate  this  water,  and  in  doing  so  the  court  said :  "In  the 
opinion  of  the  court,  this  water  on  the  land  of  Hewes  and  Dean  is  not 
subject  to  appropriation  by  any  one  without  their  consent,  so  as  to  de- 
prive them  of  the  use  thereof  on  their  land.  The  court  is  further  of  the 
opinion  that  Hewes  and  Dean  did  not  have  to  apply  to  the  territorial  en- 
gineer for  a  permit  to  appropriate  this  water,  and  that  the  applying  of  this 
water  to  their  lands  was  an  appropriation  thereof."  This  we  believe  to 
be  a  correct  statement  of  the  rights  of  the  parties  under  the  law,  as  it  is 
immaterial  whether  Hewes  was  the  absolute  owner  of  the  water  on 
his  land  or  had  the  exclusive  right  to  appropriate  it  and  apply  it  to  a 
beneficial  use  upon  his  lands.  Hewes'  testimony  is  to  the  effect  that  he 
was  applying  the  water  to  a  part  of  his  lands,  and  was  preparing  to  use 
it  upon  one  hundred  acres  of  his  land.  He  certainly  has  the  right  to  do 
this  if  he  can.  The  court  below  found  that  the  water  percolating  to  the 
surface  on  Hewes'  land  "does  not  flow  in  a  defined  channel  or  stream, 
but  spreads  over  the  soil,  following  the  swales  on  the  surface  of  the  land 
of  Hewes  and  Dean." 

The  appellant,  under  his  permit  from  the  territorial  engineer,  claims 
all  of  the  water  which  reaches  the  lands  of  Dean  in  this  way,  notwith- 
standing Dean,  with  the  consent  of  Hewes,  has  constructed  a  ditch  or 
ditches  to  receive  and  conduct  any  surplus  water  which  may  reach  his 
land,  and  claims  the  right  to  its  use  upon  fifty  acres  of  his  land,  and  he 
has  undoubtedly  the  better  right  to  it  as  a  prior  appropriator  as  between 


1910]  Vanderwork  v.  Hewes  et  al.  357 

himself  and  Vanderwork.  It  would  be  doing  violence  to  the  Act  of  1907 
to  hold  that  the  territorial  engineer  was  empowered  by  it  to  authorize 
another  applicant  to  go  upon  lands  held  in  private  ownership,  construct 
ditches  and  appropriate  seepage  water  or  waters  from  snows,  rain,  or 
springs  not  treaceable  to  or  forming  a  stream  or  water  course,  or  from 
constructed  works,  as  the  limitations  contained  in  sections  1  and  53,  de- 
fining the  waters  over  which  the  engineer  has  been  given  jurisdiction, 
plainly  indicate.  In  our  opinion,  therefore,  if  any  surplus  water  exists 
after  Hewes  has  appropriated  to  a  beneficial  use  all  he  desires,  and  is 
permitted  to  enter  the  lands  of  Dean,  he  has  a  perfect  right  to  appropri- 
ate it  also  to  a  beneficial  use ;  but  the  rights  of  Dean  are  subject  to  the 
prior  right  of  Hewes  to  apply  all  of  the  water  to  a  beneficial  use  on  his 
lands.  As  to  the  water  in  controversy  in  this  case,  any  surplus  which 
may  in  future  exist  beyond  the  necessities  of  Hewes  and  Dean  would  not 
be  subject  to  appropriation  and  distribution  under  chapter  49,  Laws  1907, 
but,  if  subject  to  appropriation  at  all  without  the  consent  of  Hewes  and 
Dean,  it  would  be  governed  by  the  general  law  of  prior  appropriation 
which  is  applicable  to  the  arid  lands  of  the  west.  This  water  not  being 
seepage  water  from  constructed  works,  and  therefore  not  subject  to  dis- 
tribution under  the  Act  of  1907,  it  was  not  necessary  for  Hewes  to  make 
application  within  a  year  to  the  territorial  engineer  for  the  appropriation 
of  it,  and  his  failure  to  make  application,  as  provided  in  section  53,  did 
not  warrant  an  application  for  the  appropriation  of  it  by  the  appellant. 
The  decision  of  the  lower  court  is  affirmed,  with  costs;  and  it  is  so 
ordered. 

PARKER,  ABBOTT  and  MECHEM,  JJ.,  concur.  POPE,  C.  J., 
having  tried  the  case  below,  did  not  participate  in  this  decision,  nor  did 
Associate  Justice  WRIGHT,  who  did  not  hear  the  argument  of  this  case. 


358 


!Wateb  and  Miner  at  j  Cases. 


[Iowa 


ROSS  v.  BOARD  OF  SUPERVISORS  OF  WRIGHT  COUNTY. 

[Supreme  Court  of  Iowa,  July  13,   1905.] 
128  Iowa  427,  104  N.  W.  506,  1  L  E.  A.   (N.  S.)  431. 


1.  Void  Statutes — Proceedings  Under,  after  Amendment. 

Proceedings  taken  under  a  void  statute  which  by  a  subsequent  amendment  is  made 
valid,  may  also  be  validated  by  the  amendment. 

2.  Constitutional    Law — Due    Process    of    Law — Notice    in    Drainage    Pro- 

ceedings. 
A  drainage  statute  which  provides  for  notice  to  the  property  owner  at  some  stage 
of  the  proceedings  before  an  assessment  is  made,  is  not  open  to  constitutional  objec- 
tion simply  because  it  does  not  provide  for  a  new  or  additional  notice  of  each  suc- 
cessive step  leading  up  to  the  assessment. 

3.  Same — Addition  of  Lands  to   Drainage  District — Notice   Required. 

The  act  providing  for  adding  lands  "in  the  vicinity"  to  a  drainage  district  with- 
out provision  for  notice  to  the  owners  thereof  is  void  as  a  taking  of  the  property 
added  without  due  process  of  law,  and  void  as  to  others  to  whom  notice  is  given 
where  the  taking  of  the  lands  "in  the  vicinity"  is  such  an  essential  feature  of  the 
scheme  or  plan  sought  to  be  effected  that  its  elimination  would  lead  to  results  not 
contemplated  by  the  legislature. 

4.  Same — Statute  Void  in  Part. 

Where  part  of  a  statute  is  void,  and  so  connected  with  the  general  scheme  or 
object  sought  to  be  attained  by  the  legislature  that  the  same  would  not  be  attained 
with  the  void  portion  stricken  out,  the  whole  statute  is  void. 


CASE   NOTE. 

Notice  Requisite  to  Due  Process  of 
Law. 

I.  Must    be  Given   Opportunity 
to  Test  Validity,  360. 

A.  In  General,  360. 

B.  "Due   Process"   if  Given 

Opportunity,  362. 
II.  Immaterial    at    What    Stage 
Given,  365. 

A.  In  General,  365. 

B.  In    Action     to     Enforce 

Assessment,  366. 

C.  In  Action  to  Test  Assess- 

ment, 367. 

III.  Legislature    May    Prescribe 

Mode,  367. 

A.  In  General,  367. 

B.  All  Affected  Entitled  to, 

368. 

IV.  Statutory    Notice     Jurisdic- 

tional, 368. 

A.  In  General,  368. 

B.  Requisite  of  ,  Implied,  370. 


Constructive  Notice,  370. 

Continuing  Notice,  371. 

Of  Establishment  and  Hearing 

as  to  Necessity,  373. 
Of  Proceedings  to  Add  Lands, 

374. 
Of  Formation  of  Subdistrict, 

375. 
X.  Of  Change  of  System,  376. 
XL  Of  Adjourned  Meeting,  376. 
Who  May  Object  to  Want  of, 

376. 

A.  In  General,  376. 

B.  Proceedings  Set  Aside, 
377. 

Waiver  of  Notice,  377. 

A.  In  General,  377. 

B.  By  Joining  in  Petition, 

378. 

C.  By    Joining     in     Remon- 

strance, 378. 
P.     By  Appearing  and  Con- 
testing, 378. 
E.     Special  Appearance,  379. 
XIV.  Knowledge   Not  Sufficient, 
379. 


V 

VI 

VII. 

VIII 

IX. 


XII 


XIII 


1905] 


EOSS  V.  BOAKD  OF  SUPERVISORS. 


359 


5.  Same — Due  Process  of  Law — Notice. 

Under  a  statute  providing  that  lands  may  be  added  to  a  drainage  district  and 
taxed  for  drainage  purposes,  with  no  provision  for  notice  to  the  owners  thereof,  the 
lands  will  be  taken  without  due  process  of  law. 

6.  Same — Drainage  Districts — Void   Proceedings  May  Be  Validated. 

Where  an  act  for  the  formation  of  drainage  districts  provides  for  proceedings 
valid  to  a  certain  point,  and  void  beyond  that  for  want  of  provision  for  notice,  the 
legislature  may,  by  an  amended  act,  cure  the  defect  and  validate  the  proceedings 
taken  up  to  the  point  where  the  invalidity  occurred. 

7.  Same — Retroactive  Laws    Laws  Not  Forbidden. 

The  Constitution  of  Iowa  does  not  forbid  the  enactment  of  retroactive  laws  and 
the  supreme  court  has  frequently  upheld  the  validity  of  such  statutes. 

8.  Same — Constitutional   Defect   in  Statute   May   Be  Cured   by  Retroactive 

Amendment. 
The  legislature  may  by  an  amendment  cure  a  constitutional  defect  in  a  statute 
the  main  purpose  of  which  is  within  the  scope  of  legislative  power,  and  give  such 
amendment  a  retroactive  effect    upon    a    proceeding    already    begun    and    pending 
under  the  original  statute. 

9.  Same — Retroactive  Statute  for  Notice. 

The  legislature  has  power  by  retroactive  statute,  to  provide  for  notice  to  property 
owners  whose  lands  were  included  in  a  drainage  district,  but  who  under  the  original 
statute  were  not  entitled  to  notice,  by  reason  of  which  fact  the  original  act  was 
unconstitutional. 

10.  Drainage   Districts — Notice — Who   Entitled  to  Object. 

As  a  general  proposition,  no  one  is  entitled  to  raise  the  objection  that  provision 
for  notice  to  the  interested  parties  is  not  made  in  a  drainage  statute  except  the 
parties  entitled  to  the  notice. 


As  to  legal  character  of  drainage 
districts,  see  note  to  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
ante,  p.   107. 

As  to  constitutional  power  to  establish 
drains  and  drainage  districts,  see  note  to 
Chicago,  B.  &  Q.  R.  Co.  v.  Board  of  Su- 
pervisors of  Appanoose  County,  post,  p. 
459. 

As  to  source  of  legislative  power  to 
drain  land3,  see  note  to  Coffman  v.  St. 
Frances  Drainage  District,  p.  — ,  vol.  3, 
this  series. 

As  to  whether  action  in  regard  to 
drainage  is  legislative  or  judicial,  see 
note  to  Smith  v.  Claussen  Park  Drain- 
age  &   Levee   District,   p.   ,   vol.    2, 

this  series. 

As  to  public  benefit  and  interest  must 
be  involved,  see  note  to  Campbell  v. 
Youngson,  p.  ,  vol.  2,  this  series. 

As  to  inclusion  or  exclusion  of  lands 
in  drainage  district,  see  IV,  note  to  Hull 
v.  Sangamon  River  Drainage  District, 
post,   p.    601. 


As  to  power  of  commissioners,  etc., 
see  note  to  Seibert  v.  Lovell,  ante,  p.  261. 

As  to  conclusiveness  of  decision  of 
drainage  commissioners  and  other  offi- 
cers,   see    notes    to    Chapman    &    Dewey 

Land  Co.  v.  Wilson,  p.  ,  vol.  2,  this 

series. 

As  to  collateral  attack  on  drainage 
proceedings,    see    note    to    Chapman    & 

Dewey  Land  Co.  v.  Wilson,  p.  ,  vol. 

2,  this  series. 

As  to  waiver  of  irregularities  in 
drainage  proceedings,  see  note  to  Smith 
v.  Claussen  Park  Drainage  &  Levee  Dis- 
trict, p.  ,  vol.  2,  this  series. 

As  to  bonds  of  drainage  districts,  see 
note  to  Sisson  v.  Board  of  Supervisors 

of  Buena  Vista  County,  p.  ,  vol.  3, 

this   series. 

For  historical  review  of  reclamation 
districts  in  California,  see  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict,  ante,  p.   107. 


360 


Watek  and  Mineral  Cases. 


[Iowa 


11.  Same — Waiver  of  Notice. 

A  landowner  who  did  not  receive  notice  of  the  organization  of  a  drainage  district, 
but  who  voluntarily  appeared  in  the  proceedings  for  prosecution  and  allowance  of 
claims  for  damages,  waives  the  objection  of  failure  of  notice. 

12.  Constitutional   Law — District  for  Taxation — Notice. 

The  division  by  the  state  of  a  part  of  its  territory  into  districts  for  taxation  for 
public  improvements  is  a  legislative  matter,  and  the  citizen  affected  thereby  is  not 
entitled  to  notice  of  the  exercise  of  the  power. 

13.  Same — Delegation  of  Legislative  Power. 

That  the  legislative  power  for  local  purposes  may  be  delegated  to  minor  munici- 
palities, is  a  matter  of  universal  recognition  and  constant  practice. 

14.  Same — Due   Process   of   Law — Notice. 

The  provision  of  law  that  when  a  proceeding  for  establishing  a  drainage  district 
has  reached  the  stage  where  it  is  proposed  to  levy  a  tax,  notice  must  be  given  the 
property  owners,  is  sufficient  to  avoid  the  constitutional  objection  against  taking 
property  without  due  process  of  law,  although  no  notice  is  required  of  the  creation 
of  the  district  or  the  determination  of  the  aggregate  amount  of  the  tax  to  be  col- 
lected. 

15.  Same — Right  of  Appeal. 

Failure  to  provide  for  appeal  from  decisions  of  the  board  of  supervisors  creating 
a  drainage  district,  does  not  render  the  law  unconstitutional  when  the  parties 
affected  have  ample  opportunity  to  be  heard  before  the  board.  Denial  of  the  right 
to  an  appeal  from  one  court  to  another  is  not  of  itself  a  denial  of  due  process  of 
law. 

16.  Same — Denial  of  Appeal. 

Power  to  make  a  final  determination  beyond  which  there  is  no  appeal  must  rest 
somewhere,  and  in  the  absence  of  express  or  clearly  implied  constitutional  limita- 


I.    Must  Be  Given  Opportunity  to  Test 
Validity. 

A.      In    General. 

By  due  process  of  law  in  a  proceeding 
such  as  the  formation  of  a  drainage 
district,  is  meant  notice  and  an  oppor- 
tunity of  being  heard,  and  the  necessity 
therefor  as  prerequisite  to  the  taking  of 
private  property  by  taxation,  is  uni- 
formly recognized.  In  regard  to  the 
ordinary  methods  of  assessment  and  val- 
uation of  property  for  taxation,  whether 
for  general  or  special  purposes,  the 
authorities  are  very  nearly  uniform,  to 
the  effect  that  it  is  necessary  to  the 
validity  of  the  assessment  that  the  prop- 
erty owner  should  have  notice  and  an 
opportunity  to  be  heard.  Gatch  v.  City 
of  Des  Moines,  63  Iowa  718,  18  N.  W. 
310  (1884)  ;  Beebe  v.  Magoun,  122  Iowa 
94,  97  N.  W.  986,  101  Am.  St.  Rep.  259 
(1904). 

Wherever  the  amount  of  the  tax  to  be 
exacted  depends  upon  the  exercise  of  the 


judgment  and  discretion  of  those  fixing 
the  value  of  the  property  or  benefits 
by  which  such  amount  is  to  be  measured, 
an  opportunity  for  correction  must  be 
afforded.  Trustees  of  Griswold  College 
v.  City  of  Davenport,  65  Iowa  633,  22 
N.  W.  904  (1885);  Beebe  v.  Magoun, 
122  Iowa  94,  97  N.  W.  986,  101  Am. 
St.  Rep.  259    (1904). 

The  power  to  tax  is  plenary,  but  taxa- 
tion implies  public  interest,  and  in  cases 
such  as  those  of  assessments  for  drain- 
age it  also  implies  proceedings  in  pais 
in  some  part  of  which  the  taxpayers 
have  a  right  to  take  part  and  be  heard. 
Any  attempt  to  levy  the  burden  in  dis- 
regard of  these  principles  must  necessa- 
rily be  inoperative,  and  where  drains 
are  constructed  upon  private  property 
where  a  right  to  continue  and  keep  them 
open  has  never  been  obtained,  and  they 
are  therefore  private  property,  a  tax 
cannot  be  levied  upon  any  portion  of  the 
public  therefor,  and  even  the  owner  of 
the    land    benefited    cannot   be   taxed    to 


1905] 


EOSS  V.  BOAKD  OF   SUPERVISORS. 


361 


tions  upon  its  authority  in  this  respect,  the  legislature  may  confide  that  power  in 
anv  given  proceeding  to  any  court  or  commission,  and  if  the  interested  party  be 
given  notice  and  has  an  opportunity  to  be  heard,  then  if  the  finding  is  against  him, 
no  constitutional  guaranty  is  violated  by  denying  him  the  right  of  appeal. 

17.  Same — What  Constitutes  "Due  Process/' 

Due  process  of  law  does  not  necessarily  imply  judicial  procedure  in  a  court  of 
record  or  right  of  trial  by  jury. 

18.  Drainage  Assessments — Completion  of  Work. 

The  assessment  for  drainaee  may  be  made  when  the  contract  is  let  or  the  amount 
for  which  the  drainage  district  is  to  be  made  liable  is  approximately  ascertained, 
and  need  not  be  delayed  until  the  work  is  completed. 

Writ  of  certiorari  to  review  proceedings  resulting  in  assessment  for 
cost  of  constructing  ditch.  Dismissed  in  trial  court.  Appeal  by  plain- 
tiff.   Affirmed. 

For  appellant— Nagle  &  Nagle. 

For  appellees— C.  F.  Peterson,  D.  C.  Chase  and  S.  Flynn. 

WEAVER,  J.  Proceedings  to  procure  the  location  and  construction 
of  the  ditch  were  instituted  by  petition,  as  required  by  the  terms  of  the 
statute,  about  March  13,  1903,  and  a  bond  to  secure  payment  of  costs 


improve  it  unless  public  considerations 
are  involved.  People  ex  rel.  Butler  v. 
Board  of  Supervisors  of  Saginaw  County, 
26  Mich.  22   (1872). 

The  law  providing  for  assessing,  cre- 
ating a  lien  upon,  and  selling  at  public 
vendue,  lands  found  by  commissioners 
likely  to  be  improved  by  the  drainage 
proposed,  without  any  opportunity  being 
given  to  the  owners  of  the  lands  to  ob- 
ject to  the  assessments  made,  either  on 
the  ground  that  the  lands  will  not  be 
benefited  or  that  the  assessments  are 
unequal  and  unjust,  is  void,  as  taking 
property  without  due  process  of  law. 
People  ex  rel.  Pullman  v.  Henion,  64 
Hun  471,  19  N.  Y.  Supp.  488   (1892). 

The  legislature  cannot  command  an 
owner  of  land  at  his  own  expense,  to 
drain  his  land  for  the  private  and  indi- 
vidual use  of  his  neighbor  in  the  manner 
and  to  the  extent  that  commissioners 
shall  direct  in  a  proceeding  ex  'parte  and 
without  notice  to  him.  This  is  not  due 
process  of  law.  Rutherford's  Case,  72 
Pa.  St.  82,  13  Am.  Rep.  655    (1872). 


An  act  providing  for  formation  of  a 
district,  assessments  of  land  and  sale 
to  enforce  the  same  without  suit,  no  pro- 
vision being  made  anywhere  for  a  hear- 
ing by  the  landowners  whose  land  is  to 
be  charged,  is  unconstitutional  and  a 
taking  of  the  property  without  due 
process  of  law.  Hutson  v.  Woodbridge 
Protection  Dist.,  79  Cal.  90,  16  Pac. 
549,  21  Pac.  435   (1889). 

Statutes  requiring  town  trustees  to 
keep  ditches  in  repair,  and  to  raise  the 
necessary  money  therefor  to  apportion 
and  assess  the  cost  upon  the  lands  which 
will  be  benefited  thereby  according  to 
such  benefits  in  his  judgment,  and  mak- 
ing no  provision  for  any  notice  to  or 
hearing  of  the  landowners,  is  void  as 
contravening  the  provisions  of  the  State 
and  Federal  Constitutions  that  no  per- 
son shall  be  deprived  of  property  with- 
out due  process  of  law.  Campbell  v. 
Dwiggins,  83  Ind.  473  (1882)  ;  Tyler  v. 
StatTex  rel.  Wilson,  83  Ind.  563  (1882). 
As  to  what  is  "due  process  of  law," 
and   constitutional    requirement    of    the 


362 


Water  and  Mineral  Cases. 


[Iowa 


and  expenses  was  filed  and  approved.  Thereupon  the  auditor  placed  a 
copy  of  the  petition  in  the  hands  of  an  engineer,  who  made  survey  of  the 
proposed  improvement  and  on  August  16,  1903,  reported  the  same  to 
the  board  of  supervisors,  with  his  estimate  of  the  costs  of  construction. 
Beginning  on  March  9,  1903,  notice  of  the  proposed  improvement  was 
served  personally  or  by  publication  upon  the  owners  of  the  lands  through 
which  the  ditch  was  to  be  constructed  that  the  matter  would  come  up 
for  hearing  at  the  regular  June,  1903,  session  of  the  board.  Certain 
claims  for  damage  having  been  filed,  appraisers  were  appointed,  who 
filed  their  report  August  17,  1903.  At  the  September,  1903,  session 
of  the  board  further  consideration  of  the  matter  was  postponed  until 
November  12,  1903,  at  which  time  the  ditch  was  established,  and  its 
construction  ordered.  Before  any  further  proceedings  were  had  in  the 
matter,  this  court  having  held  chapter  2  of  title  10  of  the  Code  to  be 
unconstitutional,  in  that  it  undertook  to  provide  for  an  assessment  of 
the  cost  of  the  ditch  in  part  against  the  lands  in  the  vicinity  not  inter- 
sected by  or  bordering  upon  such  ditch,  without  any  provision  for  notice 
to  the  owners  of  such  lands  (Beebe  v.  Magoun,  122  Iowa,  94,  97  N.  W. 
986,  101  Am.  St.  Rep.  259,  and  Smith  v.  Peterson,  123  Iowa,  672,  99 
N.  W.  552),  the  general  assembly  of  the  state  undertook  to  remedy 
the   defect   thus    disclosed.      (See   chapter   67,    p.    59,    Laws    Thirtieth 


same,  see  note,  II,  B,  to  Chicago,  B.  & 
Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  post,  p.  456. 

As  to  injunction  where  due  process  of 
law  is  denied,  see  note,  II,  B,  2,  to  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Board  of  Super- 
visors of  Appanoose  County,  post,  p.  456. 

As  to  what  is  due  process  of  law,  see 
note,  II,  B,  1,  to  Chicago,  B.  &  Q.  R. 
Co.  v.  Board  of  Supervisors  Appanoose 
County,  post,  p.  456. 

As  to  remedy  by  injunction  when  due 
process  of  law  denied  see  note,  II,  B,  2, 
to  Chicago,  B.  &  Q.  R.  Co.  v.  Board  of 
Supervisors  Appanoose  County,  post,  p. 
456. 

B.    "Due    Process"    if   Given    Opportu- 
nity. 

Wherever  by  the  laws  of  a  state  or 
by  state  authority,  a  tax,  assessment, 
servitude  or  other  burden  is  imposed 
upon  property  for  the  public  use, 
whether  it  be  for  the  whole  state  or  of 


some  more  limited  portion  of  the  com- 
munity, and  those  laws  provide  for  a 
mode  of  confirming  or  contesting  the 
charge  thus  imposed  in  the  ordinary 
courts  of  justice  with  such  notice  to  the 
person  or  such  proceeding  in  regard  to 
the  property  as  is  appropriate  to  the 
nature  of  the  case,  the  judgment  in 
such  proceeding  cannot  be  said  to  de- 
prive the  owner  of  his  property  without 
due  process  of  law,  however  obnoxious 
it  may  be  to  other  objections.  Davidson 
v.  New  Orleans,  96  U.  S.  97,  24  L.  Ed. 
616    (1877). 

Where  a  statute  vests  power  to  ap- 
portion benefits  and  burdens  in  the  first 
instance  in  drainage  commissioners,  witli 
the  right  of  any  landowner  who  feels 
himself  aggrieved  and  who  has  filed 
objections  before  the  commissioners,  to 
appeal  to  the  county  court  and  have  the 
classification  of  his  lands  reviewed,  and 
also  provides  for  a  further  appeal  to  the 
circuit  court  if  the  county  court  will 
allow   it,   otherwise,   that   the   judgment 


1905] 


Boss  v.  Board  or  Supervisoks. 


363 


General  Assembly,  approved  April  29,  1904.)  Thereafter  the  board  of 
supervisors  proceeded  with  the  matter  of  the  construction  of  the  ditch 
in  question,  following  with  substantial  accuracy  the  provisions  of  the 
statute  as  amended  by  the  Act  of  the  Thirtieth  General  Assembly,  and 
were  about  to  assess  the  expense  of  such  improvement  upon  the  lands 
found  to  be  benefited  thereby,  when  this  action  was  begun  in  certiorari 
to  have  the  proceedings  adjudged  void.  The  foregoing  history  of  the 
case  is  sufficiently  full  and  specific  to  enable  us  to  understand  the  force 
and  effect  of  the  points  made  by  counsel  in  argument. 

1.  The  first  and  principal  contention  on  the  part  of  the  appellant  is 
that  the  proceedings  to  secure  the  construction  of  the  ditch  having  been 
begun  under  a  void  statute,  the  subsequent  amendment,  even  though 
it  had  the  effect  to  make  the  statute  constitutional  and  valid,  could 
have  no  effect  to  give  life  to  the  pending  proceedings  or  authorize  an 
assessment  of  the  cost  of  the  ditch  thus  constructed  upon  lands  sup- 
posed to  be  benefited  thereby.  Assuming,  for  present  purposes,  that 
it  is  competent  for  the  legislature  to  provide  for  the  construction  of  a 
ditch  for  drainage  purposes  and  the  apportionment  of  the  cost  thereof 
as  a  special  assessment  upon  lands  thereby  benefited,  we  think  this  ob- 
jection cannot  be  sustained.     Referring  to  the  statute  as  it  stood  prior 


of  the  county  court  is  final,  provides 
a  complete  and  perfect  remedy  at  law  for 
the  purpose  of  correcting  any  in- 
equality in  the  classification,  and  equity 
will  not  interfere  with  the  judgment  of 
the  court  although  it  be  claimed  that  the 
commissioners  acted  fraudulently  in 
valuing  their  own  lands  too  low,  etc. 
Leonard  v.  Arnold,  244  111.  429,  91  N.  E. 
534   (1910). 

Where  provision  is  made  for  hearing 
a  landowner  on  questions  of  fact  and 
an  opportunity  is  given  him  to  present 
his  legal  objections,  there  is  no  taking  of 
property  without  due  process  of  law. 
Owners  of  Land  v.  People  ex  rel.  Stookey, 
113  111.  296   (1885). 

Levy  and  collection  of  taxes  for  drain- 
age purposes  where  assessment  is  re- 
ported and  the  party  is  given  his  day 
in  court,  is  not  a  taking  of  property 
without  due  process  of  law  within  the 
meaning  of  either  Federal  or  State 
Constitution.  Hoertz  v.  Jefferson  South- 
ern Pond  Draining  Co.,  119  Ky.  824,  27 
Ky.  L.  Rep.  278,  84  S.  W.  1141    (1905). 


Where  all  owners  are  given  opportu- 
nity to  question  both  the  validity  and 
the  amount  of  assessment  before  com- 
missioners and  in  court,  authority  to 
make  an  equitable  assessment  does  not 
authorize  the  taking  of  property  without 
due  process  of  law  and  is  not  in  viola- 
tion of  the  State  or  Federal  Constitution. 
McMilanet  v.  Board  of  Com'rs  Free- 
born County,  93  Minn.  76,  100  N.  W. 
384    (1904). 

The  owner  is  not  deprived  of  property 
without  due  process  of  law  where  he  is 
given  his  day  in  court  before  the  prop- 
erty is  taken.  Mound  City  L.  &  S.  Co. 
v.  Miller,  170  Mo.  240,  70  S.  W.  721, 
60  L.  R.  A.  190,  94  Am.  St.  Rep.  727 
(1902). 

Where  a  provision  is  made  for  no- 
tice and  hearing,  and  an  appeal  before 
property  can  be  appropriated  there  is 
no  taking  without  due  process  of  law. 
Cribbs  v.  Benedict,  64  Ark.  555,  44  S.  W. 
707   (1897). 

A  law  imposing  an  assessment  for  a 
local    improvement    without    notice     to 


364 


Water  and  Mineral  Cases. 


[Iowa 


to  the  amendment,  we  find  that  it  provided  for  notice  of  the  institution 
of  the  proceedings  to  the  owners  of  lands  intersected  by  or  abutting 
upon  the  ditch.  Code,  §  1940.  As  to  such  owners  it  has  never  been 
held  that,  when  thus  brought  into  the  proceedings,  they  were  entitled 
to  any  further  notice  of  the  succeeding  steps  of  the  statute  in  letting 
the  contract,  classifying  the  lands,  or  making  the  apportionment  of  the 
costs  and  expenses.  On  the  contrary,  it  seems  to  be  well  settled  that 
a  statute  which  provides  for  notice  to  the  property  owner  at  some  stage 
of  the  proceedings  before  the  assessment  is  made  is  not  open  to  the 
constitutional  objection  simply  because  it  does  not  provide  for  a  new 
or  additional  notice  of  each  successive  step  leading  up  to  the  assess- 
ment. Yeomans  v.  Riddle,  84  Iowa  147,  50  N.  W.  886;  Oliver  v. 
Monona  Co.,  117  Iowa  43,  90  N.  W.  510;  Weyerhaueser  v.  Minnesota, 
176  U.  S.  550,  20  Sup.  Ct.  485,  44  L.  Ed.  583;  Winona  &  St.  P.  Land 
Co.  v.  Minnesota,  159  U.  S.  526,  16  Sup.  Ct.  83,  40  L.  Ed.  247;  Voigt 
v.  Detroit,  184  U.  S.  115,  22  Sup.  Ct.  337,  46  L.  Ed.  459.  The  fatal 
objection  to  the  proceeding  under  the  statute  in  its  original  form  was 
found  in  the  further  provision  contained  in  Code,  §  1946,  whereby, 
when  the  construction  had  been  determined  upon,  and  an  apportion- 
ment and  assessment  of  the  expense  were  to  be  made,  it  was  provided 


and  a  hearing  or  opportunity  to  be 
heard  on  the  part  of  the  owner  of  the 
property  to  be  assessed  has  the  effect  to 
deprive  him  of  his  property  without  due 
process  of  law,  and  is  unconstitutional. 
Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am. 
Rep.   2S9    (1878). 

Where  commissioners  are  to  determine 
by  personal  view  what  lands  are  to  be 
taken  for  ditches,  to  file  their  deter- 
mination in  writing,  and  to  give  notice 
to  all  whom  it  may  concern,  and  where 
any  person  feeling  aggrieved  has  a  right 
'.of  appeal  therefrom  to  the  county 
court  which  shall  hear  the  appeal  on 
notice  to  the  appellant,  it  cannot  be  said 
there  is  a  taking  of  property  without 
due  process  of  law.  Matter  of  Ryers, 
72  N.  Y.  1,  28  Am.  Rep.  88   (1878). 

If  the  law  provides  for  giving  notice 
and  a  method  whereby  the  property 
owner  may  ultimately  challenge  the  cor- 
rectness of  the  assessment  made  against 
his  property  in  respect  to  whether  it 
was   made   in  good   faith   without  inter- 


vening mistake  or  error  and  according 
to  the  method  and  under  the  safeguards 
provided  by  the  law,  it  does  not  violate 
the  Fourteenth  Amendment  to  the  Fed- 
eral Constitution.  State  ex  rel.  Latimer 
v.  Henry,  28  Wash.  38,  68  Pac.  368 
(1902). 

Where  an  act  provides  for  an  appeal 
from  the  decision  of  commissioners  in 
classifying  lands  for  assessment  from 
the  amount  of  damages  awarded  for  land 
taken  or  injured,  from  the  taxes  and 
benefits  apportioned,  and  from  all  ques- 
tions except  as  to  the  necessity  of  the 
drainage  to  promote  the  public  health 
and  welfare,  there  is  no  taking  of  pri- 
vate property  without  due  process  of 
law.  State  ex  rel.  Baltzell  v.  Stewart, 
74  Wis.  620,  43  N.  W.  947,  6  L.  R.  A. 
394    (1889). 

Where  a  landowner  had  full  notice  of 
all  subsequent  proceedings  and  was  af- 
forded an  opportunity  to  question  the 
validity  of  the  formation  of  a  drainage 
district  and  to  object  to  the  assessment 


1905] 


EOSS  V.  BoAKD  OF  SuPEEVISOKS. 


36^ 


that  the  same  should  be  charged  not  only  upon  the  property  through 
which  the  ditch  was  laid,  and  whose  owners  had  been  notified  as  afore- 
said, but  upon  all  other  lands  "in  the  vicinity"  which  a  commission 
appointed  for  that  purpose  might  find  to  be  benefited  by  the  improve- 
ment. No  provision  was  made  for  notice  to  the  owners  of  the  addi- 
tional lands  sought  thus  to  be  taxed,  and  this  we  held  to  constitute 
a  taking  of  property  without  due  process  of  law  as  to  such  persons,  and 
therefore  unconstitutional.  Smith  v.  Peterson,  supra;  Beebe  v.  Magoun, 
supra.  In  the  Smith  case  we  further  held  the  statute  to  be  of  no 
force  or  effect  against  the  owners  of  lands  intersected  by  the  ditch 
and  upon  whom  the  notice  required  by  section  1940  had  been  served, 
not  because  it  was  unconstitutional  as  to  such  persons,  but  because 
the  void  provision  as  to  "lands  in  the  vicinity"  appeared  to  be  such 
an  essential  feature  of  the  scheme  or  plan  sought  to  be  effected  that  its 
elimination  would  lead  to  results  not  contemplated  by  the  legislature, 
and  defeat  the  purposes  which  the  statute  was  intended  to  promote.  In 
other  words,  the  methods  of  the  statute  were  constitutional  and  valid 
up  to  the  point  where  the  report  of  the  commissioners  appointed  to 
classify  the  benefited  lands  and  apportion  thereto  the  cost  of  the  im- 
provement was  returned  to  the  board,  but  the  failure  to  provide   for 


of  damages  and  benefits,  all  the  require- 
ments of  due  process  of  law  were  met, 
although  the  original  notice  may  have 
been  defective.  Wilkinson  v.  Gaines,  96 
Miss.   688,   51    So.    718    (1910). 

Where  an  act  for  the  formation  of 
drainage  districts  provides  proceedings 
valid  up  to  a  certain  point,  and  void 
beyond  that  for  want  of  provision  for 
notice,  the  legislature  may  by  an 
amended  act  cure  the  defect  and  validate 
the  proceedings  taken  up  to  the  point 
where  the  invalidity  occurred.  Ross  v. 
Board  of  Supervisors  Wright  County, 
128  Iowa,  427,  104  N.  W.  506,  principal 
case. 

II.  Immaterial  at  What  Stage  Given. 
A.  In  General. 
It  is  settled  that  if  provision  is  made 
for  notice  to  and  hearing  of  each  pro- 
prietor at  some  stage  of  the  proceedings 
upon  the  question  of  what  proportion 
of  the  tax  shall  be  assessed  upon  his 
land,    there     is    no    taking    of   property 


without  due  process  of  law.  Paulsen 
v.  Portland,  149  U.  S.  30,  13  Sup.  Ct. 
750,  37  L.  Ed.  637  (1892);  Ross  v. 
Board  of  Supervisors  Wright  County, 
128  Iowa  427,  104  N.  W.  506,  prin- 
cipal case;  Rogers  v.  St.  Paul,  22 
Minn.  494  (1876)  ;  Kelly  v.  Minneapolis, 
57  Minn.  294,  59  N.  W.  304,  26  L.  R.  A. 
92,  47  Am.  St.  Rep.  605  (1894)  ;  People 
v.  Mayor  of  Brooklyn,  4  N.  Y.  419,  55 
Am.  Dec.  266  (1851)  ;  Erickson  v.  Cass 
County,  11  N.  D.  494,  92  N.  W.  841 
(1902);  State  ex  rel.  Baltzell  v.  Stew- 
art, 74  Wis.  620,  43  N".  W.  947,  6  L.  R. 
A.  394   (1889). 

The  manner  of  giving  notice  or  spe- 
cific period  of  time  in  the  proceedings 
when  the  party  may  be  served  is  not 
very  material,  so  that  reasonable  oppor- 
tunity is  afforded  before  he  has  been 
deprived  of  the  property  or  a  lien 
thereon  is  fixed.  King  v.  City  of  Port- 
land, 184  U.  S.  61,  46  L.  Ed.  431,  22 
Sup.  Ct.  290  (1902)  ;  Voigt  v.  City  of 
Detroit,   184  U.   S.    115,   46  L.   Ed.   459, 


366 


Water  and  Mineral  Cases. 


[Iowa 


notice  to  all  the  owners  of  property  thus  affected  before  confirmation 
of  such  report  rendered  ineffectual  and  void  any  attempt  to  make  and 
enforce  a  valid  assessment.  The  proceedings  relating  to  the  ditch  in 
controversy  reached  just  this  state  of  advancement  before  the  amend- 
ment to  the  statute  found  in  chapter  67,  p.  59,  Laws  Thirtieth  General 
Assembly,  was  enacted.  That  amendment  leaves  the  statute  unchanged 
as  to  all  the  proceedings  in  such  cases  from  the  filing  of  the  petition 
up  to  the  return  or  report  made  by  the  commissioners  appointed  to 
classify  the  benefited  lands  and  apportion  the  expenses,  and  provides 
that  when  this  stage  is  reached  a  time  shall  be  fixed  for  hearing  objec- 
tions thereto,  and  notice  thereof  shall  be  served  personally  upon  residents 
and  upon  non-residents  by  publication,  and  upon  such  hearing  the  board  is 
empowered  to  determine  all  objections  to  the  assessment,  and  may  in- 
crease, diminish,  annul,  or  affirm  the  apportionments  made  in  the  commis- 
sioners' report,  or  any  part  thereof,  as  shall  be  found  just  and  equitable. 
By  section  2  of  the  amending  Act  this  amendment  was  made  to  apply  to 
all  proceedings  then  pending  before  the  boards  of  supervisors  for  the  lo- 
cation and  construction  of  drains.  Was  it  competent  for  the  legisla- 
ture to  thus  provide  and  authorize  the  defendants,  with  other  boards 
of   supervisors    having   similar   proceedings    in    hand,    to    cause    proper 


22  Sup.  Ct.  37   (1902)  ;  Oliver  v.  Monona 
County,    117    Iowa    43,    90    N.    W.    510 

(1902);    King   v.    City   of   Portland,    38 
Or.    402,   36   Pac.   63,   55   L.   R.   A.   812 

(1900). 

Where  an  opportunity  to  be  heard 
either  before  or  after  the  levying  of  the 
assessment  is  given,  there  is  no  taxing 
of  property  without  due  process  of  law. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  155  Cal.  373,  103 
Pac.  207,  ante,  p.   107. 

B.    In   Action  to    Enforce   Assessment. 

Assessments  for  reclamation  in  Cali- 
fornia can  be  collected  only  by  suit,  and 
opportunity  is  there  afforded  the  land- 
owner to  be  heard  respecting  the  assess- 
ment. He  may  set  forth  by  way  of  de- 
fense all  his  grievances,  and  therefore 
levying  of  the  assessment  cannot  be  the 
taking  of  property  without  due  process 
of  law.  Hagar  v.  Reclamation  District 
No.  108,  111  U.  S.  701,  4  Sup.  Ct.  663, 
28  L.  Ed.  569    (1883). 


Where  no  property  can  be  taken  until 
after  a  full  hearing  in  a  suit  to  recover 
assessments  in  which  legality  of  all  pro- 
ceedings may  be  contested  and  adjudged, 
it  cannot  be  said  that  property  is  taken 
without  due  process  of  law.  Reclama- 
tion Dist.  No.  108  v.  Hagar,  4  Fed.  366 
(1880). 

Where  an  assessment  can  only  be  en- 
forced by  suit  in  which  the  landowner 
is  given  notice  and  an  opportunity  to 
be  heard,  and  in  which  he  may  set  forth 
by  way  of  defense  all  his  grievances, 
he  is  given  all  that  the  guaranty  of  due 
process  of  law  requires  and  secures. 
Reclamation  Dist.  No.  108  v.  Evans,  61 
Cal.  104  (1882)  ;  Reclamation  Dist.  No. 
3  v.  Goldman,  65  Cal.  635,  4  Pac.  676 
(1884). 

All  questions  involving  the  regularity 
of  the  assessment  proceedings,  the 
amount  of  the  charge  as  compared  with 
the  benefit  conferred  and  the  fact  that 
the  cost  was  apportioned  in  proportion 
to  the  benefits,  are  open  to  investigation 


1905] 


Boss  v.  Board  of  Supervisors. 


367 


notice  to  be  served,  and  proceed  thereon  to  make  an  apportionment  and 
assessment  of  the  cost  of  the  ditch?     In  our  judgment,  this  question 
must  be  answered  in  the  affirmative.     The  Constitution  of  Iowa  does 
not  forbid  the  enactment  of  retroactive  laws,  and  this  court  has   fre- 
quently upheld  the  validity  of  such  statutes.     Land  Co.  v.   Soper,  39 
Iowa  112;  Tilton  v.  Swift,  40  Iowa  78;  McMillan  v.  Co.  Judge,  6  Iowa 
391 ;  Huff  v.  Cook,  44  Iowa  639;  Sully  v.  Kuehl,  30  Iowa  275 ;  State  v. 
Squires,  26  Iowa   340;  Galusha  v.  Wendt,  114  Iowa.  597,  87  N.  W.  512; 
Savings  &  L.  Ass'n  v.  Heidt,  107  Iowa  297,  77  N.  W.  1050,  43  L.  R.  A. 
689,  70  Am.  St.  Rep.  197;  Windsor  v.  Des  Moines,  no  Iowa    175,  81 
N.  W.  476,  80  Am.  St.  Rep.  280;  Ferry  v.  Campbell,  no  Iowa    290, 
81  N   W   604,  50  L.  R.  A.  92;  Fair  v.  Buss,  117  Iowa    164,  9°  N-  W- 
527;  Clinton  v.  Walliker,  98  Iowa  655,  68  N.  W.  431.    That  the  legisla- 
ture may  by  amendment  cure  a  constitutional  defect  in  a  statute  the 
main  purpose  of  which  is  within  the  scope  of  legislative  power,  and 
give  such  amendment  retroactive  effect  upon  cases  already  begun  and 
pending,  is  expressly  held  by  this  court  in  Ferry  v.  Campbell,  supra.    In 
that  case  proceedings  had  been  begun  to  enforce  a  collateral  inheritance 
tax  under  a  law  which  was  found  to  be  unconstitutional  for  want  of 
provision  for  notice  to  parties  in  interest.     Pending  the  proceedings,  the 
statute  was  amended,  providing  for  notice  in  such  cases  and  making  the 


in  a  suit  to  foreclose  an  assessment  lien, 
where  the  validity  of  such  assessment 
has  not  been  theretofore  adjudged  in  an 
action  to  establish  its  validity.  Lower 
Kings  River  Reclamation  Dist.  v.  Phil- 
lips, 108  Cal.  306,  39  Pac.  630,  41  Pac. 
335  (1895);  Swampland  Reclamation 
Dist.  No.  341  v.  Blumenberg,  156  Cal. 
532,  106  Pac.  389    (1909). 

Where  the  law  provides  for  the  en- 
forcement of  the  assessment  by  a  civil 
action,  it  does  not  violate  the  Fourteenth 
Amendment  to  the  Federal  Constitution, 
for  the  owner  may  in  that  action  set 
up  any  objections  or  exceptions  that  he 
may  have.  State  ex  rel.  Latimer  v. 
Henry,  28  Wash.  38,  68  Pac.  368   (1902). 

C.    In  Action  to  Test  Assessment. 

A  property  owner  is  entitled  to  a 
hearing  at  one  time  or  another  upon  the 
question  of  benefit,  and  the  statute  pro- 
viding for  action  by  the  district  to  test 
the    validity    of     an     assessment     gives 


opportunity  for  this  hearing,  and  is  not 
unconstitutional.  Lower  Kings  River  R. 
Dist.  No.  531  v.  McCullah,  124  Cal.  175, 
56  Pac.  887    (1899). 

Where  the  law  provides  for  action  to 
test  the  validity  of  an  assessment  levied 
by  a  reclamation  district,  and  that  the 
court  shall  decree  the  validity  or  in- 
validity of  the  assessment  in  accordance 
with  what  the  court  may  determine  the 
facts  to  be,  the  landowner,  if  such  ac- 
tion be  brought,  has  the  opportunity  of 
being  heard  and  cannot  thereafter  test 
the  validity  of  the  assessment  in  an  ac- 
tion to  foreclose  the  same.  Swamp 
Land  Dist.  No.  341  v.  Blumenberg,  156 
Cal.  539,  106  Pac.  389  (1909). 

III.  Legislature  May  Prescribe  Mode. 
A.  In  General. 
In  a  case  where  notice  is  necessary 
the  legislature  may  provide  what  no- 
tice shall  be  given  and  the  manner  in 
which  it  must  be  given.  Porter  v.  Stout, 


368 


Water  and  Mineral  Cases. 


[Iowa 


amendment  applicable  to  cases  there  undetermined.  Acts  27th  Gen.  As- 
sem.,  p.  27,  c.  37,  §  2.  This  we  found  to  be  a  valid  exercise  of  legislative 
power,  so  far  at  least  as  it  related  to  personal  estate ;  and  unless  we  pro- 
pose to  overrule  that  precedent — which  we  are  not  prepared  to  do — we 
see  no  way  to  avoid  giving  like  effect  to  the  amendment  to  the  drainage 
act  with  which  we  are  now  dealing.  The  same  principle  is  recognized 
and  upheld  in  several  of  the  Iowa  cases  above  cited. 

Appellant's  claim  that  the  amendatory  act  was  not  intended  to  have 
a  curative  effect  upon  proceedings  then  pending  is  clearly  opposed  to 
the  language  employed  therein.  It  was  the  apparently  studied  purpose 
of  the  legislature  to  remove  the  objection  based  upon  the  failure  of  the 
law  to  provide  for  notice  to  the  landowners,  and  to  give  legal  force  and 
effect  to  proceedings  then  pending  and  liable  to  be  rendered  nugatory 
if  such  defect  was  not  cured.  While  the  term  "legalized"  is  not  ex- 
pressly applied  to  the  preliminary  proceedings  already  had,  section  2  of 
the  amendment  hereinbefore  quoted  would  be  idle  and  meaningless  if 
they  are  not  to  be  considered  valid  and  sufficient  to  sustain  the  assess- 
ment made  pursuant  to  the  notice  for  which  the  act  provides.  The  prin- 
ciple which  we  here  apply  was  affirmed  by  us  in  Butts  v.  Monona 
County,  100  Iowa  74,  69  N.  W.  284.  Perhaps  no  case  can  be  found 
more  nearly  in  point  than  Spencer  v.  Merchant,  125  U.  S.  345,  8  Sup. 
Ct.  921,  31  L.  Ed.  763.  In  that  case,  under  a  statute  authorizing  the 
same,  a  city  ordered  a  work  of  local  improvement  to  be  made.     The 


73  Ind.  3  (1880);  Carr  v.  State,  103 
Ind.  548,  3  N.  E.  375  (1885);  Indian- 
apolis, etc.,  Gravel  Road  Co.  v.  State, 
105  Ind.  37,  4  N.  E.  316  (1886);  Bald- 
win v.  Moroney,  173  Ind.  574,  91  N.  E. 
3   (1910). 

It  is  competent  for  the  legislature  to 
provide  what  notice  shall  be  given  upon 
the  formation  of  a  drainage  district,  and 
for  the  assessment  of  the  lands  therein, 
and  where  the  notice  is  of  the  character 
prescribed  by  statute  it  is  sufficient,  and 
a  lien  may  be  fixed  upon  the  land 
through  constructive  notice.  Killian  v. 
Andrews,  130  Ind.  579,  30  N.  E.  700 
(1892). 

B.     All    Affected    Entitled    to. 

Those    landowners    whose    lands    are 

"affected"  by  the  proposed  improvement 

are  not  confined,  within  the  meaning  of 

the   act,   to   those   whose   lands   are   as- 


sessed therefor.  The  term  has  a  broader 
signification,  and  includes  all  whose 
property  rights  are  thereby  appropriated, 
and  the  extent  of  the  appropriation  is 
not  material.  If  "affected"  the  land- 
owner is  entitled  to  have  his  day  in 
court  to  have  his  damages  assessed. 
Neff  v.  Sullivan,  9  Ohio  Dee.  765,  768, 
19  Cine.  L.  Bui.  168    (1886). 

As  to  collateral  attack  on  the  giving 
and  sufficiency  of  notice,  see  note,  II,  B, 
to  Chapman  &  Dewey  Land  Co.  v.  Wil- 
son,  p.  ,  vol.   2,   this   series. 

IV.     Statutory     Notice    Jurisdictional. 
A.      In    General. 

Where  giving  of  notice  is  required  by 
statute,  it  is  essential,  and  a  failure  to 
give  it  is  fatal  to  the  jurisdiction  of  the 
commissioners  to  act.  Commissioners  of 
Mason  &  Tazewell  Special  Drainage  Dist. 
v.  G-iffin,  28  111.  App.  561    (1887). 


1905] 


ROSS  V.  BOAED  OF  SuPEKVISOKS. 


369 


work  was  done  and  the  tax  levied.  After  the  levy  had  been  made,  and 
part  of  the  property  owners  had  paid  the  tax,  other  owners  resisted 
payment,  and  were  successful  in  having  the  proceedings  adjudged  void 
because  the  statute  failed  to  provide  for  any  notice,  and  was  there- 
fore unconstitutional.  Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am.  Rep. 
289.  After  this  adjudication  was  had,  the  legislature  passed  another 
act  authorizing  a  relevy  of  such  tax  after  due  notice  to  the  owners  who 
had  refused  to  pay  their  original  apportionment.  The  validity  of  this 
legislation  was  affirmed  by  the  Court  of  Appeals  of  New  York  (Spen- 
cer v.  Merchant,  100  N.  Y.  585,  3  N.  E.  682),  and  reaffirmed  by  the 
Supreme  Court  of  the  United  States,  as  above  cited.  The  arguments 
there  used  against  the  validity  of  the  later  statute  followed  the  same 
lines  pursued  by  counsel  in  the  case  at  bar,  and  were  held  unsound  by  the 
highest  court  of  New  York  and  of  the  nation.  We  do  not  stop  to  quote 
from  these  opinions,  but  those  who  care  to  pursue  the  inquiry  will  find 
the  question  there  fully  and  exhaustively  considered. 

2.  At  the  time  the  ditch  was  located  the  records  of  the  county  indi- 
cated that  one  of  the  tracts  of  land  intersected  by  it  belonged  to  one 
Pratt,  a  resident  of  New  York,  and  notice  directed  to  him  was  served 
by  publication.  It  appears,  however,  that  Pratt  had  died  before  the  pro- 
ceedings were  instituted,  and  a  minor  daughter,  Helen  Portia  Pratt, 
was  the  real  owner,  and  the  person  upon  whom  the  notice  should  have 
been  served.  Later,  however,  and  after  the  order  of  November  12,  1903, 
establishing  the  ditch,  Helen  Portia  Pratt,  by  her  guardian,  appeared  to 


Where  the  statute  provides  for  giving 
of  notice  to  owners,  the  failure  to  give 
such  renders  the  proceeding  absolutely 
void  as  to  any  owner  to  whom  notice  is 
not  given.  Bixby  v.  Goss,  54  Mich.  551, 
20  N.  W.  581    (1884). 

Where  the  statute  provides  for  giving 
notice  on  report  of  viewers  being  filed, 
the  giving  of  such  notice  is  essential 
to  the  jurisdiction  of  the  commissioners, 
and  unless  such  notice  be  given,  they 
have  no  power  to  proceed.  Cullen  v. 
Board  of  County  Commissioners  of 
Sibley  County,  47  Minn.  313,  50  N.  W. 
237    (1891). 

The  failure  to  give  notice  may  be 
taken  advantage  of,  although  the  statute 
provides  that  judgment  establishing 
drain  or  district  is  conclusive  as  to  the 
regularity  of  all  proceedings.  Scott  v. 
Brackett,  89  Ind.  413  (1883). 
W.  &  M—  24 


Where  notice  is  required,  the  jurisdic- 
tion of  the  commissioners  to  make  an 
assessment  is  based  upon  the  notice,  and 
not  upon  the  voluntary  appearance  of 
any  of  the  landowners.  Wabash  Eastern 
Railroad  Co.  of  Illinois  v.  Commissioners 
East  Lake  Fork  Special  Drainage  Dist., 
134  111.  384,  25  N.  E.  781,  10  L.  R.  A. 
285  (1890). 

Where  the  statute  provides  for  notice 
by  publication  for  twenty  days,  proceed- 
ings based  upon  a  notice  published  for 
only  eighteen  days  are  void,  the  publica- 
tion being  essential  to  the  authority  of 
the  commissioners  to  act,  and  the  fact 
that  the  publication  was  not  made  is  a 
fatal  defect  and  consequently  defeats  ju- 
risdiction. Drainage  Commissioners  v. 
Giffin,  134  111.  330,  25  N.  E.  995   (1890). 

Where  notice  is  required  and  where 
some    notice   is   given,     it     is     sufficient, 


370 


Water  and  Mineral  Cases. 


[Iowa 


the  proceedings,  and  filed  a  claim  for  damages,  which  was  allowed,  and 
the  allowance  was  thereafter  approved  by  the  district  court  having  juris- 
diction of  the  guardianship  matter.  Counsel  for  appellant  now  contends 
that,  even  if  chapter  67,  p.  59,  Laws  Thirtieth  General  Assembly,  be 
given  retroactive  effect,  and  made  applicable  to  proceedings  then  pend- 
ing, the  failure  to  include  Helen  Portia  Pratt  in  the  notice  pursuant  to 
Code,  §  1940,  is  a  fatal  defect,  and  the  board  of  supervisors  and  county 
auditor  never  obtained  jurisdiction  to  inaugurate  the  proceedings,  and 
that  each  and  all  of  the  orders  subsequently  made  are  therefore  wholly 
void.  This  position  is  sought  to  be  supported  by  certain  decisions  of 
this  court  in  cases  relating  to  the  establishment  or  vacation  of  public 
highways.  See  R.  R.  v.  Ellithorpe,  78  Iowa  415,  43  N.  W.  277,  and 
Moffit  v.  Brainard,  92  Iowa  122,  60  N.  W.  226,  26  L.  R.  A.  821.  But 
neither  of  these  cases,  nor  any  other  which  we  have  been  able  to  dis- 
cover, go  to  the  extent  claimed  by  counsel.  The  most  that  can  be  said 
as  to  this  class  of  cases  is  that  they  apply  the  fundamental  rule  that  no 
person's  property  can  be  taken  from  him  by  a  court  or  other  tribunal 
without  notice  and  an  opportunity  to  be  heard.  Generally  speaking,  at 
least,  no  one  is  entitled  to  raise  the  objection  except  the  party  entitled 
to  the  notice.  Assume,  for  instance,  that  proceedings  for  the  establish- 
ment of  a  highway  several  miles  in  length,  and  passing  through  the  lands 
of  many  different  persons,  are  instituted,  carried  through  to  the  final 
order,  and  the  road  is  established  and  opened  to  travel.  If,  a  year 
or  two  later,  it  be  discovered  that  a  nonresident  owner  of  a  single  small 


even  though  such  notice  may  not  have 
heen  in  strict  compliance  with  the  stat- 
ute. Daly  v.  Cubbins,  107  Ind.  105,  82 
N.  E.  659  (1907);  Daly  v.  Higman,  43 
Ind.  App.  357,  87  N.  K  669  (1909); 
Smith  v.  Pyle,  44  Ind.  App.  150,  88  N. 
E.  733    (1909). 

B.  Requisite  of,  Implied. 
Although  the  statute  is  silent  on  ques- 
tion of  notice,  its  necessity  is  implied 
where  private  property  is  invaded,  and 
notice  must  be  given  of  all  original  and 
adjourned  proceedings  for  appointment 
of  commissioners,  etc.  Swan  v.  Williams, 
2  Mich.  427  (1852)  ;  Strachan  v.  Brown, 
39  Mich.  168    (1878). 

V.    Constructive  Notice. 

Proceedings  for  drainage  are  proceed- 
ings in  rem,  and    therefore    constructive 


notice  is  sufficient.  Otis  v.  De  Boer,  116 
Ind.  531,  19  N.  E.  317   (1889). 

Constructive  notice  meets  the  require- 
ment of  "due  process  of  law."  Vizzard 
v.  Taylor,  97  Ind.  90  (1884);  Carr  V. 
State,  103  Ind.  548,  3  N.  E.  375  (1885)  ; 
Killian  v.  Andrews,  130  Ind.  579,  30  N. 
E.  700  (1892)  ;  Re  Drainage  Application, 
etc.,  35  N.  J.  L.  (6  Vr.)  497  (1872); 
Cupp  v.  Seneca  County  Comm'rs,  19 
Ohio  St.  173    (1869). 

Provision  for  constructive  notice  by 
posting  does  not  render  an  act  providing 
for  the  formation  of  a  drainage  district 
unconstitutional.  Scott  v.  Brackett,  89 
Ind.  413    (1883). 

Notice  by  publication  of  petition  for 
formation  of  a  drainage  district  and  as- 
sessing benefits,  is  sufficient,  and  consti- 
tutes   due   process    of   law.      Johnson   v. 


1905] 


Boss  v.  Boakd  op  Supervisors. 


371 


tract  was  by  some  mistake  omitted  from  the  notice  for  which  the  statute 
provides,  we  may  concede  that  as  to  such  land  and  such  owner  the 
order  of  establishment  is  voidable  or  void;  but  it  would  be  a  somewhat 
startling  proposition  to  hold  that  failure  to  notify  this  one  owner  is  a 
jurisdictional  defect  of  which  every  other  owner  along  the  line  may 
take  advantage,  even  though  he  himself  was  duly  and  properly  notified. 
Moreover,  when  the  omitted  owner  voluntarily  appeared  to  the  proceed- 
ings, and  procured  an  allowance  of  her  claim  for  damages,  we  think  it 
will  be  held  to  operate  as  a  waiver  by  her  of  all  objections  based  upon 
the  failure  to  serve  her  with  notice.  The  only  interest  the  other  land- 
owners could  have  in  her  being  properly  made  a  party  was  that  her 
property  might  be  compelled  to  bear  its  share  of  the  expense  in  case  the 
ditch  should  be  constructed,  and  when  she  voluntarily  appeared  the  only 
possible  ground  of  objection  on  their  part  was  removed.  Poundstone  v. 
Baldwin,  145  Ind.  139,  44  N.  E.  191 ;  Hauser  v.  Burbank,  117  Mich.  642, 
76  N.  W.  in  ;  Wolpert  v.  Newcomb,  106  Mich.  357,  64  N.  W.  326;  Hurst 
v.  Martinsburg,  80  Minn.  40,  82  N.  W.  1099.  Under  the  law  of  the 
cases  here  cited — and  we  find  none  to  the  contrary — it  is  entirely  imma- 
terial whether  a  guardian  is  authorized  to  waive  service  of  notice  upon  his 
ward,  and  we  need  not  here  pass  upon  that  question.  Had  the  notice  been 
served,  the  ward  could  have  done  no  more  than  to  appear  by  guardian  for 
the  protection  of  her  rights.  He  did  so  appear,  and  brought  the  matter 
before  the  court  for  its  consideration  and  approval.  If  notice  to  the 
ward  was  necessary  to  bind  her  by  such  approval,  we  must  assume  in 
this  collateral  proceeding  that  the  court  did  not  act  without  it. 


Board     of     Supervisors     Story     County 
(Iowa),  126  N.  W.   153    (1910). 

Act  providing  for  publication  of  no- 
tice to  all  persons  interested  in  the  as- 
sessment, and  giving  them  thirty  days 
in  which  to  file  exceptions  thereto,  does 
not  deprive  an  owner  of  property  without 
due  process  of  law.  Caton  v.  Western 
Clay  Drainage  Dist.,  87  Ark.  8,  112  S.  W. 
145  (1908). 

VI.     Continuing    Notice. 

A  statute  which  provides  notice  to  the 
property  owner  at  some  stage  of  the 
proceeding,  is  not  open  to  the  constitu- 
tional objection  simply  because  it  does 
not  provide  for  a  new  or  additional  no- 
tice of  each  successive  step  leading  up 
to    the    assessment.      Winona    &    St.    P. 


Land  Co.  v.  Minnesota,  159  U.  S.  526, 
16  Sup.  Ct.  83,  40  L.  Ed.  247  (1895); 
Weyerhaueser  v.  Minnesota,  176  U.  S. 
550,  20  Sup.  Ct.  485,  44  L.  Ed.  582 
(1900)  ;  Voigt  v.  Detroit,  184  U.  S.  115, 
22  Sup.  Ct.  337,  46  L.  Ed.  459  (1902)  ; 
Oliver  v.  Monona  County,  117  Iowa  43, 
90  N.  W.  510  (1902)  ;  Ross  v.  Board  of 
Supervisors  Wright  County,  128  Iowa 
427,  104  N.  W.  506,  principal  case. 

Where  a  statute  provides  for  the  for- 
mation of  a  reclamation  district  and  the 
levying  of  assessments,  requiring  that 
on  presentation  of  petition  setting  forth 
a  description  of  lands  of  which  it  is 
desired  to  have  the  district  formed,  with 
the  names  of  the  owners,  if  known,  etc., 
a  notice  of  hearing  shall  be  given  by 
publication,   after  the   formation   of  the 


372 


Water  and  Mineral  Cases. 


[Iowa 


3.  The  statute  as  amended  provides,  as  we  have  seen,  for  the  appoint- 
ment of  commissioners  who  examine  the  lands  with  the  view  of  determin- 
ing what  tracts  are  benefited  by  the  improvement,  classify  them  as  "low," 
"wet,"  "swamp,"  and  "dry,"  and  fix  their  estimate  of  the  proportion  of 
the  expense  which  each  tract  ought  to  bear.  In  effect,  their  report  is  a 
designation  of  the  boundaries  or  territorial  extent  of  the  drainage  dis- 
trict and  a  statement  of  the  finding  of  the  commissioners  as  to  a  just 
and  equitable  distribution  of  the  cost  upon  the  several  tracts  of  land 
embraced  in  the  territory  so  marked  out  by  them.  Appellant  takes  the 
position  that  the  landowner  is  entitled  to  notice  and  hearing  as  to  the 
extent  of  this  district,  and  whether  his  land  shall  be  included  therein,  and 
that  the  failure  to  provide  for  such  notice  and  hearing  renders  the 
statute  unconstitutional.  In  our  opinion,  the  objection  is  unsound.  The 
division  of  a  state  or  lesser  municipal  territory  into  districts  for  the 
purposes  of  taxation  or  public  improvement  is  a  legislative  matter,  and 
the  citizen  affected  thereby  cannot  complain  because  the  power  is  exer- 
cised without  notice  to  him.  If,  for  instance,  the  legislature  saw  fit  to 
divide  the  entire  state  into  drainage  districts,  and  make  the  lands  in 
each  district  chargeable  with  the  expense  of  such  drains  therein  as  the 
public  welfare  might  demand,  we  apprehend  that  such  legislation  would 
be  open  to  no  serious  constitutional  objection  on  the  ground  that  it  de- 
prives the  landowner  of  property  rights  without  due  process  of  law. 
That  such  legislative  power  for  local  purposes  may  be  delegated  by  the 
legislature  to  minor  municipalities  is  a  matter  of  universal  recognition 
and  constant  practice.    For  example,  a  city  may,  by  its  council,  divide  its 


district  no  other  or  further  notice  to 
owners  is  required  to  be  given,  but  pro- 
ceedings are  to  be  had  for  the  election 
of  trustees,  levying  of  assessments,  etc. 
If  an  assessment  remains  unpaid,  pro- 
vision is  made  for  bringing  an  action 
against  the  delinquent  owner.  Such  stat- 
ute does  not  conflict  with  the  Fourteenth 
Amendment  of  the  Constitution  of  the 
United  States.  Davidson  v.  New  Orleans, 
96  U.  S.  97,  24  L.  Ed.  616  (1877); 
Hagar  v.  Reclamation  Dist.  No.  108,  111 
U.  S.  701,  28  L.  Ed.  569  (1884); 
Reclamation  Dist.  No.  3  v.  Goldman,  65 
Cal.  635,  4  Pac.  676  (1884);  Reclama- 
tion Dist.  No.  108  v.  Hagar,  66  Cal.  54, 
4  Pac.   945    (1884). 

Where    a    ditch    has    been    established 
under    statutes    prescribing    notice,    the 


reopening  or  repairing  of  the  same  may 
be  done  and  the  costs  assessed  without 
other  notice  than  the  previous  construc- 
tion of  the  ditch  and  the  law  afforded. 
The  jurisdiction  acquired  by  the  original 
petition,  notice,  and  other  proceedings 
continues,  and  the  duty  of  exercising 
that  jurisdiction  is  imposed  upon  the 
board  of  supervisors.  The  notice  was 
continuing,  and  the  owners  of  the  land 
within  the  district  created  by  the  loca- 
tion of  the  ditch  and  levy  of  taxes  were 
bound  to  avail  themselves  of  the  statu- 
tory remedies  without  any  other  informa- 
tion, the  same  as  in  the  case  of  general 
taxation.  Yeomans  v.  Riddle,  84  Iowa 
147,  50  N.  W.  886  (1891)  ;  Beebe  v.  Ma- 
goun,  122  Iowa  94,  97  N.  W.  986,  101 
Am.  St.  Rep.  259  (1904). 


1905] 


EOSS  V.  BOAED  OF   SuPEKVISOES. 


373 


territory  into  sewer  districts  (Code,  §  794),  or  the  entire  city  may  be 
declared  a  single  district,  and  the  cost  of  a  sewer  be  made  a  general 
charge  upon  all  the  property  within  its  boundaries ;  and  the  fact  that 
an  individual  property  owner  has  been  given  no  hearing  in  the  matter 
of  the  districting,  or  that  he  may  believe  that  his  property  is  in  no  man- 
ner benefited  by  the  improvement,  affords  him  no  ground  for  impeach- 
ing the  validity  of  the  statute  or  ordinance  by  which  the  districting  was 
accomplished.  Other  familiar  instances  of  the  exercise  of  this  delegated 
legislative  power  will  probably  occur  to  the  intelligent  reader.  State  v. 
King,  37  Iowa  462;  State  ex  rel.  Witter  v.  Forkner,  94  Iowa  1,  62  N. 
W.  yj2,  28  L.  R.  A.  206;  Topeka  v.  Huntoon  (Kan.  Sup.),  26  Pac.  488; 
Robinson  v.  Schenck,  102  Ind.  307,  1  N.  E.  698 ;  Kinney  v.  Zimpleman, 
36  Tex.  554;  Stanfill  v.  Court,  80  Ala.  287;  Dunn  v.  Wilcox  Co.,  85 
Ala.  144,  4  South,  661 ;  Hyde  Park  v.  Spencer,  118  111.  446,  8  N.  E.  846; 
Turner  v.  Detroit,  104  Mich.  326,  62  N.  W.  405 ;  State  ex  rel.  Baltzell  v. 
Stewart,  74  Wis.  620,  43  N.  W.  947,  6  L.  R.  A.  394.  The  very  objection 
here  raised  by  appellant  was  involved  in  Voigt  v.  Detroit,  123  Mich.  547, 
80  N.  W.  253.  And  see  same  case  on  appeal,  184  U.  S.  115,  22  Sup.  Ct.  337, 
46  L.  Ed.  459.  In  the  cited  case  the  Michigan  court  says :  "No  provision 
is  made  for  a  notice  to  property  owners  of  a  time  and  place  for  hearing 
upon  either  the  question  of  fixing  a  taxing  district  or  the  question  of  the 
amount  of  the  award  to  be  spread  thereon.  This,  it  is  claimed,  leads  to 
taking  property  without  due  process  of  law,  and  is  unconstitutional.  The 
statute  provides  for  a  hearing  in  relation  to  the  proportion  each  piece  of 


VII.   Of  Establishment  and  Hearing  as 
to    Necessity. 

If  provision  is  made  for  notice  and 
hearing  where  proceeding  has  reached 
the  stage  -where  it  is  proposed  to  levy  a 
tax,  it  is  sufficient,  although  no  notice 
is  required  of  the  creation  of  the  dis- 
trict or  the  aggregate  amount  of  the 
assessment  or  tax  to  be  levied.  Voigt  v. 
City  of  Detroit,  123  Mich.  547,  82  N.  W. 
253  (1900);  Voigt  v.  City  of  Detroit, 
184  U.  S.  115,  22  Sup.  Ct.  337,  46  L.  Ed. 
459  (1902):  Ross  v.  Board  of  Super- 
visors Wright  County,  128  Iowa  427, 
104  N.  W.  506,  principal  case. 

The  California  Act  of  1885  (St.  1885, 
p.  204),  providing  for  the  formation  of 
drainage  districts,  is  not  unconstitu- 
tional as  failing  to  require  notice  of 
hearing    of    petition    for    formation    of 


district  or  concerning  assessments  to  be 
imposed.  Laguna  Drainage  Dist.  v.  Chas. 
Martin  Co.,  144  Cal.  209,  77  Pac.  933 
(1904). 

The  division  of  the  state  or  parts 
thereof  into  districts  for  the  purpose  of 
taxation  or  local  improvement  is  a  leg- 
islative matter,  and  the  citizen  affected 
thereby  cannot  complain  because  the 
power  is  exercised  without  notice  to  him. 
Even  dividing  the  entire  state  into  such 
districts  would  not  be  open  to  the  con- 
stitutional objection  of  depriving  the 
landowners  of  property  rights  without 
due  process  of  law.  Ross  v.  Board  of 
Supervisors  Wright  County,  128  Iowa 
427,  104  N.  W.  506,  principal  case. 

Under  the  Michigan  Statute,  owners 
of  lands  liable  to  be  assessed  for  bene- 
fits from  drain,  but  not  of  lands  abutting 


374 


Watek  and  Mineral  Cases. 


[Iowa 


property  shall  bear  to  the  whole  of  the  improvement,  and  the  proper  no- 
tice of  this  hearing  was  given.  It  is  claimed  by  counsel  that  complainant 
was  entitled  to  notice  of  the  hearing  relating  to  the  establishment  of  the 
assessment  district  and  of  the  amount  of  the  total  assessment,  and  because 
the  statute  does  not  provide  for  these  notices  it  is  unconstitutional  as 
taking  property  without  due  process  of  law.  We  do  not  think  this  proposi- 
tion of  counsel  can  be  maintained.  The  right  of  the  legislature  to  estab- 
lish special  assessment  districts  in  which  all  the  taxes  necessary  to  be 
raised  to  pay  for  a  local  improvement  may  be  assessed,  was  for  a  long 
time  questioned,  but  that  right  has  so  often  been  sustained  by  the  courts 
that  it  is  no  longer  an  open  question."  After  citing  authorities,  the  court 
proceeds :  "Under  these  authorities  it  is  very  clear  that  the  legislature 
might  have  established  the  special  assessment  district.  Had  it  seen  fit 
to  do  so,  would  it  be  claimed  that  its  right  to  do  so  could  have  been 
questioned  as  unconstitutional  because  no  notice  was  given  to  the  prop- 
erty holders  affected  thereby  that  it  intended  to  establish  such  a  dis- 
trict? If  the  answer  to  this  question  should  be  in  the  negative, 
why,  when  the  legislature  has  delegated  to  the  common  council 
of  the  city  the  right  to  establish  the  special  district,  should  it 
be  said  that  the  law  delegating  this  power  is  unconstitutional  because 
notice  is  not  required?  The  establishment  of  the  special  assessment 
district  in  the  one  instance  by  the  legislature  and  in  the  other  instance 
by  the  council  is  the  exercise  of  a  legislative  power,  with  which  the 
courts  will  not  ordinarily  interfere."  Upon  appeal  to  the  United  States 
Supreme   Court  the  judgment  of  the  state   court  was   affirmed.     The 


the  drain,  have  no  right  to  notice  or  to 
take  part  in  the  proceedings  for  the  es- 
tablishment of  the  drain  until  the 
letting  thereof  and  the  designation  of 
their  lands  as  part  of  the  assessment 
district,  and  they  have  no  constitutional 
right  to  be  heard  upon  the  necessity  for 
the  drain.  Roberts  v.  Smith,  115  Mich. 
5,  72  N.  W.  1091  (1897);  Hinkley  v. 
Bishopp,  152  Mich.  256,  114  N.  W.  676 
(1908). 

VIM.    Of    Proceedings   to   Add    Lands. 

Under  the  law  providing  that  drain- 
age commissioners  may  at  any  time  en- 
large the  boundaries  of  their  district  by 
attaching  new  areas  of  land  which  are 
involved  in  the  same  system  of  drainage, 
and  require  for  outlets  the  drains  of  the 
district   made  or  proposed   to   be  made, 


as  the  case  may  be,  on  the  petition  of 
a  greater  proportion  of  the  landowners 
of  the  district,  so  enlarged,  as  is  re- 
quired for  an  original  district,  but 
failing  to  provide  the  mode  of  proced- 
ure or  notice  to  be  given  of  the  land 
sought  to  be  annexed,  it  cannot  be  as- 
sumed that  the  legislature's  intent  was 
to  vest  the  commissioners  with  power 
to  annex  adjoining  lands  and  subject 
the  same  to  extraordinary  burdens  with- 
out securing  to  the  owners  a  right  to  no- 
tice and  to  be  heard,  and  as  careful 
and  elaborate  provisions  are  made  for 
notice,  etc.,  in  the  law  providing  for  the 
original  formation  of  the  district,  it 
must  be  assumed  that  the  legislature 
deemed  it  unnecessary  to  repeat  those 
provisions,  leaving  it  to  the  courts  to 
import   into   that   section   as    matter   of 


1905] 


ROSS  V.  BOAKD  OF  SuPEEVISOKS. 


375 


provision  of  law  by  which,  when  the  proceeding  has  reached  the  stage 
where  it  is  proposed  to  levy  the  tax,  a  notice  must  be  served  on  the 
property  owners,  was  held  sufficient  to  avoid  the  constitutional  objec- 
tion, notwithstanding  no  notice  is  required  in  respect  to  the  creation  of  the 
district  or  the  determination  of  the  aggregate  amount  of  the  tax  to  be 
collected.     See,  also,  to  the  same  effect,  State  ex  rel.  Baltzell  v.  Stewart, 
supra;  People  v.  Mayor,  4  N.  Y.  419,  55  Am.  Dec.  266 ;  Rogers  v.  St.  Paul, 
22  Minn.  494 ;  Kelly  v.  Minneapolis,  57  Minn.  294,  59  N.  W.  304,  26  L.  R. 
A.  92,  47  Am.  St.  Rep.  605 ;  Erickson  v.  Cass  Co.,  11  N.  D.  494,  92  N.  W. 
841;  Paulsen  v.  Portland,  149  U.  S.  30,  13  Sup.  Ct.  750,  37  L.  Ed.  637. 
In  the  last-cited  case  the  rule  is  thus  stated:     "It  is  settled  that  if  pro- 
vision is  made  for  notice  to  and  hearing  of  each  proprietor  at  some  stage 
of  the  proceedings  upon  the  question  of  what  proportion  of  the  tax  shall 
be  assessed  upon  his  land,  there  is  no  taking  of  property  without  due 
process  of  law."     In  the  case  before  us  there  is,  under  the  statute,  as 
amended,  ample  provision  for  notice  to  every  landowner,   and  oppor- 
tunity given  for  the  hearing  of  all  objections  he  may  have  to  assert 
against  the  validity  and  justice  of  the  proposed  charge  upon  his  prop- 
erty.   This,  under  the  law,  is  all  he  can  rightfully  ask.    It  is  to  be  noted, 
moreover,  that  upon  the  hearing  which  the  statute  gives  the  owner  pur- 
suant to  the  notice  provided  for  by  the  amendment,  the  board  of  super- 
visors may  not  only  increase  or  diminish  the  apportionment  of  the  tax 
reported  by  the  commissioners,  but  may  "annul"  it  entirely.    The  action 
of  the  board  at  this  meeting  is  the  final  and  authoritative  settlement  of 


construction,  the  rules  as  to  notice  ap- 
plicable to  the  formation  of  the  original 
district,  for  so  far  as  the  land  annexed 
is  concerned,  the  annexation  proceedings 
constitute  its  original  organization  into 
a  district.  Drainage  Commissioners  v. 
Giffin,  134  111.  330,  25  N.  E.  995   (1890). 

Where  upon  hearing  a  petition,  cer- 
tain lands  described  therein  are  excluded 
and  other  lands  are  included,  notice  as 
required  by  law  to  be  given  the  owners 
of  lands  described  in  the  petition  must 
be  given  to  the  owner  of  the  lands  added 
thereto,  or  the  organization  is  void. 
Sanner  v.  Union  Drainage  Dist.  No.  1, 
175  111.  575,  51  N.  E.  875   (1898). 

The  act  providing  for  adding  lands  "in 
the  vicinity"  to  a  district  without  pro- 
vision for  notice  to  the  owners  thereof, 
is  void  as  a  taking  of  the  property  added 
without   due    process    of   law,    and    void 


as  to  others  to  whom  notice  is  given 
where  the  taking  of  the  lands  "in  the 
vicinity"  is  such  an  essential  feature  of 
the  scheme  or  the  place  sought  to  be 
affected  that  its  elimination  would  lead 
to  results  not  contemplated  by  the  leg- 
islature. Smith  v.  Peterson,  123  Iowa 
672,  99  N.  W.  552  (1904);  Ross  V. 
Board  of  Supervisors  Wright  County,  128 
Iowa  427,  104  N.  W.  506,  principal 
case. 

As  to  adding  lands  to  district  and 
changing  boundaries  of  districts,  see 
note,  II,  C  and  I,  to  Hull  v.  Sangamon 
River  Drainage  District,  post,  pp.  596, 
599. 

IX.    Of  Formation  of  Subdistrict. 

As  to  formation  of  subdistricts,  see 
note,  III,  B,  to  Hull  v.  Sangamon  River 
Drainage  District,  post,  p.  600. 


376 


Water  and  Mineral  Cases. 


[Iowa 


the  boundaries  of  the  taxing  district,  and  this  is  done  only  after  full 
opportunity  is  given  to  each  landowner  to  show  cause,  if  he  has  any, 
why  his  land  should  not  be  included  therein.  It  is  not  denied  that  the 
notice  required  by  the  amended  statute  was  given,  and  plaintiff  given 
full  opportunity  to  be  heard,  and  the  objection  here  made  is  not  well 
taken. 

4.  The  constitutionality  of  the  act  is  further  questioned  because  by 
Code,  §  1947,  which  allows  an  appeal  from  the  assessment  made  by  the 
board  of  supervisors,  it  is  also  provided  that  upon  the  trial  of  the  appeal 
it  shall  not  be  competent  for  the  owner  to  show  that  his  land  received 
no  benefits  from  the  improvement.  Counsel  seem  to  contend  that  the 
landowner  is  thus  cut  off  from  all  opportunity  to  be  heard  on  the  ques- 
tion whether  his  land  receives  any  benefit  by  reason  of  the  ditch  for  the 
construction  of  which  he  is  taxed.  But,  as  noted  in  the  concluding  part 
of  the  preceding  paragraph,  this  is  a  mistake.  The  landowner  is  given 
opportunity  to  appear  before  the  board  of  supervisors,  which  body  is  au- 
thorized to  try  all  such  objections,  and  if  it  be  found  that  any  tract  of 
land  reported  by  the  commissioners  is  not  in  fact  benefited  by  the  im- 
provement, it  may  be  relieved  of  the  burden.  The  effect  of  the  restrictive 
clause  in  Code,  §  1947,  is  to  deny  the  right  of  appeal  from  this  finding 
of  the  board  of  supervisors,  and  confine  all  further  review  to  the  ques- 
tion whether  the  appellant's  land  has  been  assessed  in  equal  and  fair 
proportion,  as  compared  with  other  property  embraced  in  the  district. 
That  a  statute  making  the  finding  of  the  board  conclusive  upon  the  ques- 


Ajq  a«t  providing  for  formation  of  a 
subdistrict  including  lands  of  petitioners 
therefor  and  lands  over  which  the  nec- 
essary drains  thereof  will  run,  providing 
for  notice  to  owners  of  lands  to  be  in- 
cluded and  giving  them  an  opportunity 
to  be  heard,  is  not  a  taking  without  due 
process  of  law,  but  if  other  lands  are 
included  in  the  subdistrict,  the  owners 
of  which  are  given  no  notice  and  no 
opportunity  to  be  heard,  the  inclusion  of 
their  lands  would  be  a  taking  without 
due  process  of  law.  Dewell  v.  Commis- 
sioners of  S.  N.  Y.  Levee  Drainage  Dist., 
232  111.  215,  83  N.  E.  811    (1908). 

X.    Of  Change  of  System. 

Notice  need  not  be  given  of  change  of 
system  of  drainage  by  commissioners  and 
of  additional  assessment  to  pay  cost 
thereof.     Reynolds  v.  Milk  Grove  Special 


Drainage   Dist.,    134   111.    2G8,   25   N.   E. 
516   (1890). 

XI.   Of  Adjourned  Meeting. 

Notice  of  adjourned  meeting  is  not 
necessary  where  the  adjournment  is 
taken  in  open  session.  Kinnie  v.  Bare, 
80  Mich.  345,  45  N.  W.  345  (1890). 

XII.     Who    May    Object    to    Want    of. 
A.      In    General. 

As  a  general  proposition,  no  one  is 
entitled  to  object  for  want  of  notice 
except  the  party  who  is  himself  entitled 
to  notice.  Ross  v.  Board  of  Supervisors 
Wright  County,  128  Iowa  427,  104  N.  W. 
506,  principal  case. 

Failure  to  give  notice  to  one  land- 
owner cannot  be  set  up  by  another,  ex- 
cept where  the  effect  of  such  failure  is 
to  prevent  the  construction  of  the  drain. 


1905] 


EOSS  V.  BOAKD  OF  SUPERVISORS. 


377 


tion  whether  a  given  tract  of  land  is  properly  included  in  the  benefited 
district,  and  denying  appeal  therefrom,  is  not  an  unconstitutional  depriva- 
tion of  property  without  due  process  of  law,  is  a  rule  which  has  been 
affirmed  by  the  great  weight,  if  not  the  universal  current,  of  authority. 
The  rieht  to  an  appeal  from  one  court  or  tribunal  to  another  has  never 
been  held  to  be  in  itself  a  denial  of  due  process  of  law.     The  power  to 
make  a  final  determination  beyond  which  there  is  no  appeal  must  rest 
somewhere,  and  in  the  absence  of  express  or  clearly  implied  constitutional 
limitations  upon  its  authority  in  this  respect,  the  legislature  may  confide 
that  power  in  any  given  proceeding  to  any  court,  board,  or  commission. 
Of  course,  the  tribunal  thus  designated  must  observe  due  process  of  law- 
thatT  the  party  must  be  given  notice  and  have  opportunity  to  be  heard 
^U  if  the  finding  be  against  him,  no  constitutional  guaranty  is  violated 
by  dL  ing  him  tlfe  right  of  appeal.    Such  is  ^\^J^^ 
cases      Chambliss  v.  Johnson,  77  Iowa  612,  42  N.  \\  .  427,  Lambert  v. 
MUls'co.,  58  Iowa  666,  I2  N.  W.  7x5  ;  Alston  v  Monona ^"  ^a  fo 
82  N   W  Q22;  Oliver  v.  Monona,  117  Iowa   43,  9°  N.  W.  510.     lo  tne 
s  me  pomt?see  State  ex  rel.  Hughes  v.  Dist.  Court,  95  Minn  70,  103  N.  W. 
ST   State  ex  rel.  Baltzell  v.  Stewart,  74  Wis.  620,  43  N.  W  947,  6  L.  R. 
r;Q4    Dicton  v.  Racine,  66  Wis.  545,  *  N.  W.  620;  Teegarden  v. 
Racine'  S6  Wis.  54S  H  N.  W.  614;  Rogers  v.  St.  Paul,  22  Minn   494; 
We  ver  v  Wn,n3  Ind.  298,  14  N.  E.  600;  Reeves  v.  Grottendick 131 
Tnd    107.0  N   E   889;  Klein  v.  Tuhey,  13  Ind.  App.  74,  40  N.  E.  144, 
Htb  7;.fith,  I9x  U.  S.  310, 24  Sup.  Ct.  88,  48  L.  Ed.  1* ;  Waterworks 
*  Schottler,  110  U  S.  347,  4  Sup.  Ct.  48,  28  L.  Ed.  173;  Bonfoy  v.  Goar, 

may    waive    defects,    etc.,    where   proper 
notice  is  not  give  and  jurisdiction  not 
acquired,    generally,    each    landowner    of 
the    district,    whether   he    appeared    and 
contested    the    organization    of    the   dis- 
trict  or   not,    has    such    interest   in   the 
question  of  the  legality  of  the  organiza- 
tion as  to  the  lands  of  the  other  owners 
as    would   give    him    the    right    in    any 
proper  proceedings  brought  to  test  the 
question,  to  allege  want  of  jurisdiction 
of  the  persons  of  the  land  holders  of  the 
district  and  of  the  land  owned  by  them, 
and  to  insist  that  for  that  reason  the 
entire   organization  of  the   district  was 
illegal  and  void,  and  the  same  rule  ap- 
plies to  the  annexation  of  lands  to  a  dis- 
trict   already    formed.      Drainage    Com- 
missioners v.  Giffin,  134  111.  330,  25  N.  E. 
995    (1890). 


Grimes  v.  Coe,  102  Ind.  406,  1  N.  E.  735 
(1885)  ■  Pittsbur?  C.  C.  &  St.  L.  R.  Co. 
v.  Machler,  158  Ind.  159,  63  N.  E.  210 
(1902)  ;  Wolpert  v.  Newcomb,  106  Mich. 
357,  64' N.  W.  326    (1895). 

Defect  of  notice  to  certain  landowners 
will  not  affect  the  proceeding  as  to  those 
who  were  notified.  Carr  v.  Boone,  108 
Ind.  241,  9  N.  E.  110    (1886). 

B.  Proceedings  Set  Aside. 
But  the  whole  proceeding  should  be 
set  aside  on  application  of  any  party 
who  has  not  been  given  the  required 
notice.  Sites  v.  Miller,  120  Ind.  19,  2? 
N.  E.  82  (1889). 

XIII.    Waiver  of   Notice. 
A.      In    General. 
Although  landowners  by  appearing  in 
proceedings  for  formation  of  a  district, 


378 


Water  and  Mineral  Cases. 


[Iowa 


140  Ind.  292,  39  N.  E.  56;  Spencer  v.  Merchant,  125  U.  S.  345,  8  Sup. 
Ct.  921,  31  L.  Ed.  763;  Re  Fowler,  53  N.  Y.  60;  Dodge  Co.  v.  Acom, 
61  Neb.  376,  85  N.  W.  292 ;  Griffith  v.  Pence,  9  Kan.  App.  253,  59  Pac. 
677;  Joplin  M.  Co.  v.  Joplin,  124  Mo.  129,  27  S.  W.  406;  Gillett  v.  Mc- 
Laughlin, 69  Mich.  547,  37  N.  W.  551 ;  Bowersox  v.  Seneca,  etc.,  20  Ohio 
St.  496;  People  v.  Hagar,  66  Cal.  59,  4  Pac.  951 ;  Britton  v.  Blake,  35  N.  J. 
Law,  208;  Britton  v.  Blake,  36  N.  J.  Law,  442;  Hagar  v.  District,  in 
U.  S.  701,  4  Sup.  Ct.  663,  28  L.  Ed.  569;  Davidson  v.  New  Orleans,  96 
U.  S.  97,  24  L.  Ed.  616.  "Due  process  of  law"  does  not  necessarily  imply 
judicial  procedure  in  a  court  of  record  or  right  of  trial  by  jury.  Re 
Bradley,  108  Iowa,  476,  79  N.  W.  280;  Pub.  CI.  House  v.  Coyne,  194 
U.  S.  497,  24  Sup.  Ct.  789,  48  L.  Ed.  1092;  Weimer  v.  Bunbury,  30 
Mich.  201;  Spencer  v.  Merchant,  supra;  Yeomans  v.  Riddle,  84  Iowa 
147,  50  N.  W.  886;  Wulzen  v.  Board,  101  Cal.  15,  35  Pac.  353,  40  Am. 
St.  Rep.  17;  Munson  v.  Commissioners,  43  La.  Ann.  15,  8  South.  906; 
McMahon  v.  Palmer,  102  N.  Y.  176,  6  N.  E.  400,  55  Am.  Rep.  796; 
Cooky's  Const.  Lim.,  p.  354,  355 ;  McKeevers  v.  Jenks,  59  Iowa  300,  13 
N.  W.  295 ;  Re  Meder  Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675,  14  L.  R. 
A-  755.  27  Am-  St.  Rep.  106;  Hagar  v.  Rec.  Dist.,  in  U.  S.  701,  4 
Sup.  Ct.  663,  28  L.  Ed.  569.  The  holding  of  the  trial  court  comes  well 
within  the  law  of  the  cited  cases,  and  must  be  upheld. 

5.  Some  other  question's  are  suggested  as  to  the  details  to  be  observed 
in  carrying  the  statute  into  effect.  Among  other  things,  it  is  said  that 
the  tax  should  not  be  levied  until  the  work  is  actually  done.     We  see 


B.     By   Joining    in    Petition. 

One  who  signs  the  petition  for  forma- 
tion of  a  district  cannot  object  to  de- 
fective notice,  or  want  of  notice.  Carr 
v.  Boone,  108  Ind.  241,  9  N.  E.  110 
(1886). 

C.  By  Joining  in   Remonstrance. 
One    who    joins    in    a    remonstrance 

against  the  proceedings  cannot  set  up 
want  of  notice  thereof.  Sunier  v.  Miller, 
105  Ind.  393,  4  N.  E.  867  (1886)  ;  Ford 
v.  Ford,  110  Ind.  89,  10  N.  E.  648 
(1887)  ;  Pittsburg  C.  C.  &  St.  L.  R.  Co. 
v.  Machler,  158  Ind.  159,  63  N.  E.  210 
(1902);  Re  Drainage  Application,  etc., 
35  N.  J.  L.    (6  Vr.)    511    (1872). 

D.  By  Appearing  and  Contesting. 
Notice   is   waived   by   appearance   and 

participation   in  the  proceedings.     Ross 


v.  Board  of  Supervisors  Wright  County, 
128  Iowa  427,  104  N.  W.  506  (1905), 
principal  case;  Gilkerson  v.  Scott,  76 
111.  509;  Sunier  v.  Miller,  105  Ind. 
393,  4  N.  E.  867  (1885);  Undegraff  v. 
Palmer,  107  Ind.  181,  6  N.  E.  353 
(1886);  Ford  v.  Ford,  110  Ind.  89,  10 
N.    E.    648     (1886). 

One  who  is  served  with  notice  and 
appears  and  contests  assessments  on  the 
merits  without  making  objection  to  suf- 
ficiency of  notice  or  regularity  in  filing 
petition,  waives  all  questions  pertaining 
to  the  jurisdiction  growing  out  of  such 
matters.  He  cannot  take  advantage  of 
failure  to  notify  others,  unless  it  appears 
such  failure  will  prevent  construction  of 
the  drain.  Pittsburg  C.  C.  &  St.  L.  R. 
Co.  v.  Machler,  158  Ind.  159,  63  N.  E. 
210   (1902)). 


1905] 


EOSS  V.  BOAED  OF  SuPEKVISOES. 


379 


no  reasonable  ground  for  the  objection.  Certainly  the  statute  seems  to 
authorize  the  proceeding  taken  by  the  supervisors.  When  the  contract  is 
let,  the  amount  for  which  the  drainage  district  is  to  be  made  liable  is  ap- 
proximately ascertained,  and  it  is  the  dictate  of  business  prudence  that 
the  board  proceed  at  once  to  provide  for  the  means  with  which  to  dis- 
charge the  debt.  Our  attention  is  called  to  no  precedent  or  rule  of  law  in 
support  of  the  proposition  stated  by  counsel,  and  we  think  the  objection 
must  be  overruled.  If,  as  claimed,  the  board  failed  to  fix  the  proportion 
of  the  tax  to  be  paid  yearly,  we  have  to  say  that  the  petition  in  this 
action  was  filed  September  21,  1904,  interrupting  the  proceedings  by  the 
board  before  any  assessment  was  made,  and  that  the  order  distributing 
payment  over  a  series  of  years  pertains  to  a  matter  of  detail  which  we 
may  presume  the  supervisors  will  properly  attend  to  when  the  termina- 
tion of  this  litigation  leaves  them  free  to  go  on  with  the  matter. 

Other  points  made  in  argument  are  merely  incidental  to  or  are  gov- 
erned by  those  which  we  have  already  considered  at  length,  and  do  not 
require  further  discussion. 

The  conclusion  reached  by  the  district  court  is  correct,  and  the  decree 
appealed  from  is  affirmed. 


One  appearing  before  supervisors  in 
proceedings  for  establishment  of  a  drain, 
and  making  no  objection  thereto,  is 
barred  from  objecting  to  the  notice  of 
the  formation  of  the  district  on  appeal 
from  an  order  levying  assessment.  In 
re  Lightner,  145  Iowa  95,  123  N.  W. 
749    (1910). 

E.    Special  Appearance. 

Waiver  of  notice  is  not  made  by  one 
who  appears  specially  to  object  to  want 
of  notice.  Carr  v.  Boone,  108  Ind.  241, 
9  N.  E.  110  (1886).  But  it  is  if  he 
takes  part  in  the  general  proceedings. 
Gilbert  v.  Hall,  115  Ind.  549,  18  N.  E. 
28    (1888). 

As  to  waiver  of  irregularities  in 
drainage  proceedings,  see  note  II  to 
Smith    v.    Claussen    Park    Drainage    & 


Levee   District,    p. 

series. 


vol.     2,    this 


XIV.     Knowledge   Not   Sufficient. 

Where  commissioners  have  not  ac- 
quired jurisdiction,  a  landowner  is  not 
estopped  by  knowledge  of  the  work.  Bice 
v.  Wellman,  5  Ohio  Cir.  Ct.  Rep.  334 
(1891). 

It  is  not  enough  that  the  owners 
chance  to  have  notice  or  that  they  may 
as  a  matter  of  favor  have  a  hearing.  The 
law  must  require  notice  to  them  and 
give  them  a  right  to  a  hearing,  and  the 
opportunity  of  being  heard.  Beebe  V. 
Magoun,  122  Iowa  94,  97  N.  W.  986, 
101  Am.  St.  Rep.  259  (1904);  Stuart 
v.  Palmer,  74  N.  Y.  183,  30  Am.  Rep. 
289   (1878). 


380 


Water  and  Mineral  Cases. 


[Louisiana 


J.  M.  GUFFEY  PETROLEUM  CO.  v.  MURREL,  Tax  Collector,  et  al. 

[Supreme   Court   of   Louisiana,   November    14,    1010;    on    application    for    rehearing 

December  12,  1910.] 

—  La.  — ,  53   So.  704. 

1.  Mine — Definition   of   Word. 

A  mine  is  defined  as  a  large  opening  in  the  ground  made  for  the  purpose  of 
getting  metal  ores  or  coal. 

2.  Oil   Well — Not  a    Mine. 

An  oil  well  is  not  a  mine  and  operation  of  a  well  is  not  a  mining  operation 
within  article  230  of  the  Louisiana  Constitution  exempting  property  so  used  from 
certain  classes  of  taxes. 

3.  Oil  Not  a  Mineral. 

Mineral  oil  is  not  classed  as  a  mineral  within  the  meaning  of  the  Louisiana  Con- 
stitution. 

4.  Oil    Company — Assessment. 

The  J.  M.  Guffey  Petroleum  Company  is  sufficiently  described  for  the  purpose 
of  a  valid  assessment  by  the  name  "Guffey  Oil  Company." 

5.  Taxation — Exemptions  Strictly  Construed. 

Exemptions  from  taxation  are  strictly  construed  and  doubt  as  to  the  legislative 
intent  destroys  the  claim  of  immunity. 

Appeal  from  Eighteenth  Judicial  District  Court,  Parish  of  Acadia; 
Wm.  Campbell,  Judge. 

Action  by  the  J.  M.  Guffey  Petroleum  Company  against  J.  L.  Murrel 
and  others,  to  enjoin  a  sale  for  taxes.  Judgment  for  plaintiff.  Defend- 
ants appeal. 

Reversed. 

For  appellants — J.  L.  Dormon  and  Lewis  &  Lewis. 

For  appellees — Story  &  Pugh  and  Carlton  &  Townes. 

Statement  of  the  Case. 

NICHOLLS,  J.  The  plaintiff,  a  corporation  organized  under  the 
laws  of  Texas  and  domiciled  in  the  city  of  Beaumont  in  that  state,  alleged  : 
That  long  prior  to  the  acquisition  of  the  lands  and  properties  described 
in  its  petition,  and  long  prior  to  the  ist  of  January,  1907,  it  had  filed 


NOTE. 

On    petroleum    and    natural    gas     as 


minerals,  see  note  to  Whiting  v.  Stroup, 
p.  ,  vol.  2,  this  series. 


1910]  Petroleum  Co.  v.  Murrel  et  al.  381 

with  the  Secretary  of  State  of  Louisiana  a  declaration  of  the  place  of 
locality  of  its  domicile,  together  with  the  name  of  its  agent  or  officer  in 
the  said  state  of  Louisiana,  representing  said  corporation,  upon  whom 
services  of  process  could  be  made,  and  had  in  all  things  complied  with 
the  Constitution  and  laws  of  the  state  of  Louisiana,  and  that  it  was,  on 
the  i st  day  of  January,  1907,  and  at  all  times  thereafterwards,  duly 
authorized  to  do  business  in  the  state  of  Louisiana,  and  especially  to  do 
the  business  the  nature  and  character  of  which  is  hereafter  disclosed. 

That  on  the  said  1st  day  of  January,  1907,  in  conjunction  with  one  T. 
H.  Bass,  it  was  the  owner  and  was  in  possession  of  the  land  and  proper- 
ty and  property  rights  and  privileges  hereafter  set  out ;  it,  the  said  plaintiff, 
owning  an  undivided  one-half  interest  therein,  and  the  said  T.  H.  Bass 
owning  the  other  undivided  one-half  interest  therein.  That  said  property 
was  situated  in  the  parish  of  Acadia,  state  of  Louisiana,  and  being  describ- 
ed as  follows,  to  wit:  All  the  rights,  privileges,  and  immunities  of  the 
lessee  in  a  certain  oil  or  mineral  lease  executed  on  the  23d  day  of  March, 
1903,  by  the  Jennings-Heywood  Oil  Syndicate  to  George  Harrison  Morse, 
Fred  F.  Morse,  Charles  Stoddard  Morse,  George  A.  Morse,  and  Avery 
C.  Wilkins,  said  lease  being  concurred  in  by  one  L.  Arnoudet,  same  the 
following  described  property,  to  wit: 

Situated  in  the  northwest  corner  of  section  47,  township  9  south,  range 
2  west  La.  Mer.  Beginning  at  the  northwest  corner  of  section  47;  and 
running  thence  approximately  south  along  the  line  of  said  section  47, 
417.42  feet;  thence  running  approximately  east  on  a  line  parallel  with  the 
north  line  of  said  section  47,  216.42  feet;  thence  running  approximately 
north  on  a  line  parallel  with  the  west  line  of  said  section  47  to  the  north 
line  of  said  section ;  thence  running  approximately  west  with  the  north 
line  of  said  section  47  to  the  place  of  beginning.  Which  lease  is  duly 
recorded  in  the  conveyance  records  of  the  parish  of  Acadia,  La.,  and 
said  instrument  is  hereby  referred  to;  this  lease  or  instrument  giving  the 
right  to  the  lessee  to  develop  the  said  land  and  produce  petroleum  oil 
therefrom  upon  the  payment  of  a  fixed  royalty  therein  provided. 

Also,  the  rights  of  lessee  granted  and  given  by  a  certain  oil  or  mineral 
lease  hereinafter  described  covering  the  following  described  tract  of  land, 

to  wit: 

Beginning  at  the  northeast  corner  of  the  two  acres  just  above  described, 
which  said  beginning  point  in  the  north  line  of  section  47,  216.72  feet  east 
from  the  northwest  corner  of  said  section;  thence  approximately  south 
parallel  with  said  section  47  and  along  the  east  line  of  said  two-acre  tract 
a  distance  of  417.42  feet;  thence  east  parallel  with  the  north  line  of  said 
section  a  distance  of  54.18  feet;  thence  approximately  north  parallel 
with  the  west  line  of  said  section  a  distance  of  417.42  feet  to  the  north 


382  "Water  and  Mineral  Cases.  [Louisiana 

line  of  said  section;  thence  west  a  distance  of  54.18  feet  to  the  place  of 
beginning.  Said  one-half  acre  of  ground  being  described  in  a  mineral 
lease  executed  by  the  Ladies  Oil  Company,  Limited,  to  George  A.  Morse 
of  date  January  2,  1905,  passed  before  Charles  R.  Kline,  notary  public, 
duly  recorded  in  the  records  of  conveyances  of  the  parish  of  Acadia, 
state  of  Louisiana;  and  also  described  in  a  certain  lease  and  mineral 
contract  executed  by  the  Bienville  Oil  Company  to  the  Morse  Oil  Com- 
pany of  date  April  20,  1905,  passed  before  Charles  R.  Kline,  notary 
public,  to  which  said  instrument  and  the  records  thereof  reference  is 
hereby  made,  the  interests  of  the  lessees  being  shown  by  said  leases  above 
described,  which  oil  or  mineral  leases  were  in  the  usual  form  and  con- 
veyed to  the  lessee  therein  a  right  to  develop  the  land  and  produce  oil 
therefrom  upon  the  payment  of  the  royalty  therein  provided. 

Also,  all  the  right,  title,  and  interest  as  lessee  in  and  to  a  certain  three 
acres  of  land  described  as  one-acre  tracts  as  follows:  First  tract: 
Starting  at  a  point  in  the  section  line  between  sections  46  and  47,  town- 
ship 9  south,  range  2  west  La.  Mer.,  417.42  feet  from  the  northwest  cor- 
ner of  section  47,  running  in  a  southerly  direction  on  and  along  said 
section  line  a  distance  of  208.71  feet  to  corner ;  thence  in  an  easterly  direc- 
tion on  a  line  parallel  to  the  north  line  of  said  section  47,  216.72  feet,  to 
corner;  thence  in  a  northerly  direction  on  a  line  parallel  to  the  west  line 
of  said  section  47,  208.71  feet,  to  corner;  thence  in  westerly  direction  in 
a  line  parallel  to  the  north  line  of  said  section  47,  216.72  feet,  to  corner 
and  place  of  beginning,  containing  one  acre  of  land.  Second  tract: 
Starting  at  a  point  in  the  north  line  of  section  47,  township  9 
south,  range  2  west  La.  Mer.,  325.8  feet  east  from  the  northwest  cor- 
ner of  said  section  47;  thence  in  southerly  direction  in  a  line  parallel 
to  the  west  line  of  said  section  47,  a  distance  of  417.42  feet,  to  cor- 
ner; thence  in  an  easterly  direction  on  a  line  parallel  to  the  north 
line  of  said  section  47,  a  distance  of  108.36  feet,  to  corner;  thence  in  a 
northerly  direction  in  a  line  parallel  to  the  west  line  of  said  section  47, 
a  distance  of  417.42  feet,  to  corner  in  north  line  of  said  section  47; 
thence  in  a  westerly  direction  with  the  north  line  of  section  47,  a  distance 
of  108.36  feet,  to  corner  and  place  of  beginning,  containing  one  acre  of 
land.  Third  tract :  Beginning  at  a  point  in  the  north  line  of  section  47, 
township  9  south,  range  2  west  La.  Mer.,  433.44  feet  in  an  easterly  direc- 
tion from  the  northwest  corner  of  said  section  47;  thence  in  a  southerly 
direction  in  a  line  parallel  with  the  west  line  of  said  section  47,  417.42 
feet,  to  corner ;  thence  in  an  easterly  direction  on  a  line  parallel  with  the 
north  line  of  section  47,  108.36  feet,  to  corner;  thence  in  a  northerly 
direction  on  a  line  parallel  to  the  west  line  of  said  section  47,  a  distance 
of  417.42  feet,  to  corner;  thence  in  a  westerly  direction  with  the  north 


1910]  Petkoleum  Co.  v.  Mureel  et  al.  383 

line  of  said  section  47,  a  distance  of  108.36  feet,  to  corner  and  place  of 
beginning,  containing  one  acre  of  land. 

The  rights  of  the  lessee  in  said  three  acres  of  land  are  shown  by  a 
contract  in  the  nature  of  a  lease  made  between  the  Jennings-Heywood 
Oil  Syndicate  and  the  Morse  Oil  Company  on  the  29th  day  of  April,  1904, 
acknowledged  on  said  date  before  j.  H.  Heinen,  notary  public,  in  which 
said  contract  the  lessee  was  given  the  right  to  develop  said  land  and 
produce  oil  therefrom  on  the  payment  of  a  certain  royalty  fixed  in  sail 
contract.  All  the  rights  granted  to  the  Morse  Oil  Company  (which  have 
since  been  acquired  by  the  plaintiff  herein)  in  and  by  virtue  of  a  contract 
executed  on  December  14,  1905,  by  W.  H.  Lovegrove  to  the  Morse  Oil 
Company,  whereby  the  Morse  Oil  Company,  in  consideration  of  the  pay- 
ment of  $1,000  to  said  Lovegrove,  obtained  certain  rights  in  and  to  the 
100  feet  square  in  acre  15  in  the  Arnoudet  tract  in  the  Mamou  or  Jen- 
nings oil  field  in  Acadia  parish,  La.,  obtained  by  Lovegrove  and  Mc- 
intosh from  the  West  Virginia  Oil  Company,  the  rights  in  which  were 
acquired  by  the  said  Lovegrove  from  the  partnership  of  Lovegrove  & 
Mcintosh  under  which  contract  made  with  Lovegrove  the  Morse  Oil 
Company  secured  the  right  to  operate  for  oil  and  gas  upon  said  tract 
of  land  as  is  shown  by  the  said  contract,  which  is  hereby  referred  to. 
The  land  covered  by  the  contract  so  executed  by  Lovegrove  to  the  Morse 
Oil  Company  is  the  same  land  leased  to  Lovegrove  &  Mcintosh  by  the 
West  Virginia  Oil  Company  on  the  25th  day  of  January,  1905,  and  is 
a  tract  100  feet  by  100  feet  out  of  acre  15  of  the  Arnoudet  tract  in  the 
Mamou  or  Jennings  oil  field  in  Acadia  parish,  La.,  which  lease  is  re- 
ferred to.  The  rights  of  the  said  Morse  Oil  Company  (which  have  been 
acquired  by  plaintiff  herein)  was  the  right  to  develop  said  land  and 
produce  petroleum  oil  therefrom. 

Also,  all  the  rights  of  lessee  granted  by  a  certain  oil  or  mineral  lease 
executed  by  the  Jennings-Heywood  Oil  Syndicate  to  the  Morse  Oil  Com- 
pany concurred  in  and  ratified  by  Jules  Clement  and  the  Lyons  Oil 
Corporation  passed  on  before  J.  H.  Heinen,  notary  public,  October  15, 
1903,  and  covering  the  following  described  tract  of  land : 

Beginning  at  stake  in  the  south  line  of  block  14  of  the  Jules  Clement 
tract  of  land  in  fractional  section  46,  township  9  south,  range  2  west 
La.  Mer.,  as  shown  by  a  plat  of  subdivision  in  full  in  the  clerk's  office 
of  said  Acadia  parish,  and  marked  "plat  showing  subdivisions  into  acres 
and  fractions  of  blocks  in  fractional  section  46,  township  9  south,  range 
2  west  La.  Mer.,  a  part  of  holdings  of  Jennings-Heywood  Oil  Syndicate, 
surveyed  and  certified  by  J.  F.  Harvey  and  W.  H.  Garrot,  said  stake 
being  situated  20  feet  to  the  eastward  of  the  southwest  corner  of  block 
14";  thence  southward  321.47  feet  in  a  line  parallel  to  the  west  line  of 


384  Water  and  Mineral  Cases.  [Louisiana 

fractional  section  46  and  20  feet  distant  from  said  line  to  stake  for  corner; 
thence  eastward  on  a  line  parallel  to  the  south  line  of  block  14,  135.05 
feet,  to  a  stake  for  corner;  thence  northward  321.47  feet  on  a  line 
parallel  with  the  west  line  of  fractional  section  46;  thence  westward  and 
along  the  south  line  of  block  14,  135.05  feet,  to  stake  for  corner  and  place 
of  beginning,  containing  one  acre  of  land,  together  with  all  buildings  and 
improvements  thereon.  Which  conveyance  is  duly  recorded  in  the  records 
of  conveyances  of  the  parish  of  Acadia,  La.,  and  is  hereby  referred  to. 

Which  said  right  of  said  lessee,  as  created  by  said  contract,  was  the 
right  to  develop  said  land  and  produce  petroleum  oil  therefrom  upon 
payment  of  certain  royalties  provided  in  said  instrument.  Also,  three 
certain  earthen  storage  tanks  situated  in  the  southeast  corner  of  the 
northeast  one- fourth  and  in  the  northeast  corner  of  the  southeast  one- 
fourth  of  section  42,  township  9  south,  range  2  west  La.  Mer.  The  said 
earthen  storage  tanks  are  located  on  land  not  owned  by  the  plaintiff 
herein  nor  by  the  grantors  of  plaintiff  herein,  but  the  right  claimed  by 
the  plaintiff  herein  is  the  right  to  the  use  of  said  earthen  storage  tanks 
for  the  accommodation  of  petroleum  oil  produced  from  the  land  above 
described. 

Also,  certain  personal  property  connected  with  and  in  active  use  of 
the  business  of  developing  and  marketing  oil  from  the  land  described,  con- 
sisting of  rotary  drilling  rigs,  cable  drilling  rigs,  pumping  rigs,  pumping 
engines,  pipe,  tubing,  boilers,  wooden  and  steel  tanks,  and  various  and 
sundry  other  articles  of  machinery  and  merchandise  used  in  connection 
with  the  business  of  developing  said  land  and  producing  and  handling 
petroleum  oil  therefrom. 

That  on  or  about  the  month  of  June,  1907,  the  said  plaintiff  herein, 
the  J.  M.  Guffey  Petroleum  Company,  purchased  from  T.  H.  Bass  all 
of  his  interest  in  the  property  and  property  rights  of  whatever  nature  or 
kind  hereinbefore  described.  That  on  or  before  the  1st  day  of  June, 
1907,  and  Up  to  the  time  that  the  plaintiff  herein  bought  the  interest 
owned  by  the  said  Bass  in  the  said  property,  this  plaintiff,  together  with 
the  said  Bass,  appeared  to  be  the  owners  of  the  said  property  upon  the 
books  of  the  recorder's  office  in  the  parish  of  Acadia,  State  of  Louisiana, 
and  that,  after  the  purchase  made  by  this  plaintiff  from  the  said  Bass,  it 
(the  plaintiff)  appeared  to  be  the  sole  owner  of  the  said  property  on  the 
books  of  the  recorder's  office  of  said  parish. 

That,  from  time  to  time  during  the  year  1907,  the  said  J.  M.  Guffey 
Petroleum  Company  placed  certain  property  in  the  way  of  machinery 
and  appliances  on  the  land  necessary  to  be  used  in  the  conduct  of  its  bus- 
iness of  producing  oil  from  said  land  and  marketing  and  handling  same. 
That,  during  the  time  the  said  Bass  was  a  conjoint  owner  with  this 


1910]  Petkoleum  Co.  v.  Murrel  et  al.  385 

plaintiff  in  the  said  property,  the  whole  of  the  said  property  was  used  by 
it  in  the  production,  handling,  and  marketing  of  petroleum  oil  therefrom, 
and,  since  said  purchase  from  the  said  Bass,  the  whole  of  the  property 
above  described  has  been  used  by  this  plaintiff  in  the  production,  hand- 
ling, and  marketing  of  petroleum  oil  therefrom. 

That  on  the  ist  day  of  January,  1907,  and  at  all  times  thereafterwards, 
it  and  the  said  Bass  (from  whom  it  acquired  an  interest  in  the  property) 
were  using  said  property  solely  in  the  production,  handling,  and  market- 
ing of  petroleum  therefrom,  and  the  said  land,  and  each  and  every  article 
of  persona!  property  connected  therewith,  were  used  and  were  necessary 
to  be  used  in  the  production,  handling,  and  marketing  of  petroleum  oil 
therefrom,  and  that  its  business  and  the  said  business  of  the  said  Bass,  so 
conducted  in  respect  to  said  property  during  the  whole  of  said  time,  was 
a  mining  operation  within  the  terms  of  the  Constitution  of  the  State  of 
Louisiana,  and  all  of  said  land,  and  all  of  said  personal  property  con- 
nected therewith,  and  all  of  the  rights  therein  exercised  or  in  any  way 
used  by  this  plaintiff  in  connection  with  said  Bass  during  the  said  time 
in  question,  that  is,  on  January  1,  1907,  and  at  all  times  thereafterwards, 
was  a  mining  operation,  and  the  same  represented  and  was  capital,  ma- 
chinery and  other  property  employed  in  mining  operations  within  the 
terms  and  meaning  of  the  Constitution  of  the  State  of  Louisiana.    That 
the  sole  use  for  which  the  said  property  is  and  has  been  held  during  the 
said  period  of  time  was  to  produce  petroleum  oil  therefrom.     That  the 
said  plaintiff  and  the  said  T.  H.  Bass  during  the  time  he  was  a  part 
owner  therein  were  in  respect  to  said  land,  engaged  in  the  business  of 
producing  oil  from  oil  wells  located  on  said  land,  and  in  the  sinking  of 
additional  wells  thereon,  and  in  producing  oil  therefrom,  and  in  the  mar- 
keting, handling,  and  making  available  to  themselves  the  oil  produced 
therefrom.     That  the  business  that  plaintiff  was  engaged  in,  the  char- 
acter of  which  is  hereinabove  discussed,  is  and  was  a  mining  opera- 
tion.    That   the    oil    on  hand    at  any  time  coming  from  the    said    land 
represented  and  was  capital,  machinery,  and  other  property  employed  in 
mining  operations,  was  the  avails  of  its  business,  conducted  as  aforesaid, 
and  it  (the  plaintiff)  here  alleges  that  the  whole  of  the  same  was,  under 
the  Constitution  of  the  State  of  Louisiana,  exempt  from  parochial  and 
municipal  taxation  for  the  year  1907.     And  said  petitioner  further  rep- 
resents that  on  the  ist  day  of  January,  1907,  and  at  all  times  thereafter- 
wards, this  petitioner  for  itself,  during  the  time  that  it  was  the  sole 
owner  of  the  said  property,  and  it  together  with  the  said  Bass  during  the 
time  that  the  said  Bass  was  conjointly  interested  with  it  in  the  owner- 
ship of  the  said  property,  employed  not  less  than  five  hands  in  the  con- 
duct and  management  of  said  business ;  this  being  necessary  to  the  proper 
W.  &  M—  25 


386  Water  and  Mineral  Cases.  [Louisiana 

conduct  of  its  business,  the  character  of  which  has  been  hereinbefore 
given. 

That,  notwithstanding  such  exemption  under  the  Constitution,  the  as- 
sessor of  the  parish  of  Acadia,  State  of  Louisiana,  has  attempted  to 
assess  for  taxes  for  the  year  1907  the  said  property  above  described  and 
had  attempted  to  assess  against  the  said  property  certain  parochial  taxes, 
the  exact  amount  and  nature  of  which  would  hereinafter  be  given ;  the 
exact  words  of  said  assessment  being  as  follows : 

For  the  use  and  value  of  pipings,  earthen,  wooden  and  iron  tanks  in 
the  Jennings  oil  field,  tools,  implements,  oil  well  on  Martin  lands,  also  on 
lands  of  L.  Arnoudet  in  section  47,  township  9,  range  2  west,  including 
wells  Nos.  1,  2,  6,  and  12  on  Martin  I  lease  and  wells  Nos.  7  and  8  on 
R.  E.  Brooks  lease  and  all  wells  on  hand  January  1st,  and  including  all 
the  property  which  were  sold  to  T.  J.  Bass  by  the  Morse  Oil  Company. 

State   Tax    $125  00 

Parish  Tax    125  00 

Fourth  Ward  Road  Tax 100  00 


$350  00 
That,  as  a  matter  of  fact,  the  assessment  so  made  by  the  assessor  pur- 
ports to  be  against  the  Guffey  Oil  Company,  and  is,  in  no  sense,  a  proper 
assessment  against  this  plaintiff;  but  it  is  averred:  That  said  attempted 
assessment  is  asserted  and  claimed  by  the  officers  representing  the  parish 
of  Acadia  to  be  a  charge  against  the  property  of  the  plaintiff  herein,  a 
description  of  which  has  hereinbefore  been  given.  That  the  gross  valua- 
tion put  upon  said  property  by  the  assessor  of  the  parish  of 
Acadia,  and  the  police  jury  of  said  parish,  amounts  to  $25,000; 
this  being  given  as  the  aggregate  value  of  all  of  the  hereinabove 
described  property  assessed  in  the  terms  hereinabove  set  out.  Plaintiff 
shows :  That  the  state  tax  attempted  to  be  assessed  against  said  prop- 
erty for  the  year  1907  amounts  to  $125.  That  certain  interest  and  other 
costs  claimed  by  the  parish  against  this  plaintiff  and  against  other  property 
amounts  to  $7.25,  which  said  amount  of  state  tax,  as  well,  also,  as  said 
charges  amounting  to  $132.75,  this  plaintiff  had  paid  and  here  exhibits 
the  receipt  of  the  tax  collector  of  Acadia  parish,  to  wit,  the  sheriff  of  said 
parish,  the  defendant  herein,  showing  the  payment  of  $132.25,  which  said 
tax  receipt  was  marked  "Exhibit  B."  That,  in  addition  to  the  said  tax 
so  paid  by  the  plaintiff  herein,  the  said  parish,  the  police  jury  (whereof 
J.  Kenneth  Toler  is  president),  and  the  said  J.  L.  Murrel,  defendants 
herein,  were  claiming  a  right  to  collect  from  this  plaintiff  $325  parochial 
tax  under  an  ordinance  levying  a  tax  for  general  parochial  purposes 
adopted  November  13,  1907,  and  an  ordinance  levying  a  special  four- 
mill  tax  for  road  purposes  in  the  Fourth  Ward  of  the  parish,  adopted 
August  27,  1907. 


1910]  Petkoleum  Co.  v.  Mukrel  et  al.  387 

That  notwithstanding  said  parochial  tax,  amounting  to  $325,  was  not 
assessable  against  the  said  plaintiff,  the  said  defendant  herein,  J.  L.  Mur- 
rel,  sheriff  and  tax  collector  of  Acadia  parish,  had  demanded,  and  was  de- 
manding, the  payment  thereof,  and  had  notified  petitioner  that,  should 
it  fail  to  pay  said  taxes,  he  would  proceed  to  advertise  and  sell  said 
property  and  appropriate  the  proceeds  of  said  sale  to  the  payment  of  said 
illegal  tax ;  said  property  being  now  ordered  for  sale  for  said  pretended 
tax* on  16th  of  January,'  1908.     That  the  said  sheriff  has  procured  to  be 
delivered  to  this  plaintiff  a  notice  addressed  to  Guffey  Oil  Company  "Beau- 
mont, Tex.,"  advising  that  he  will  sell  said  property  unless  said  tax  be 
paid,  a  copy  of  which  said  notice  is  hereto  attached,  marked  "Exhibit  C," 
and  made  a  part  hereof  and  hereby  referred  to.     That  although  the  plain- 
tiff has  paid  all  of  the  taxes  properly  assessable  against  it,  and  although 
the  said  assessment  against  the  said  plaintiff  and  its  said  property  on  ac- 
count of  parochial  taxes  is  null  and  void,  and  of  no  force  and  effect,  the 
said  defendant  herein  persists  in  his  demand  for  the  collection,  and  threat- 
ens to  and  will  attempt  to  sell  the  said  property  of  the  plaintiff  herein 
unless  he  be  restrained  from  so  doing.     Plaintiff  shows:     That  while 
the  assessment,  a  copy  of  which  appears  hereinabove,  does  not  accu- 
rately describe  the  property  of  this  plaintiff,  and  while  the  assessment 
is  not  made  against  this  plaintiff  by  name,  it  is  shown  and  here  averred 
to  be  fact  that  this  plaintiff  was  intended  to  be  designated  under  the 
appellation  of  the  "Guffey  Oil  Company,"  and  the  property  attempted 
to  be  described  in  said  assessment  is  the  property  and  no  other  than  that 
owned  and  used  bv  this  plaintiff  as  hereinabove  described,  and  the  sale 
threatened  to  be  made  by  the  defendant  herein  is  intended  to  be  a  sale 
of  the  said  propertv  so  owned  by  the  plaintiff  and  will  or  might,  if  per- 
mitted to  be  made,'  cover  and  include  at  least  portions  of  the  property 
actually  owned  by  said  plaintiff  as  hereinbefore  set  out. 

That,  in  order  to  protect  it  and  its  property  from  such  illegal  seizure 
and  sale,  h  was  necessarv  that  an  injunction  be  issued,  and  that,  unless 
said  injunction  was  issued,  the  said  sheriff  would  execute  his  threat 
and  proceed  to  make  said  sale. 

That  it  now  here  offers  to  make  a  bond  in  such  terms  and  for  such 
amount  as  the  court  may  require,  and  it  signifies  its  willingness  to  comply 
with  any  order  legally  made  by  this  court  in  the  premises. 

In  view  of  the  premises,  petitioner  prays :  That,  a  rule  nisi  issue  here- 
in to  Joseph  L.  Murrel,  sheriff  of  the  parish  of  Acadia,  and  to  the  police 
jury  of  the  parish  of  Acadia,  represented  by  its  president,^  J.  Kenneth 
Toler,  and  to  Alex  Lormand,  assessor  of  the  parish  of  Acadia,  as  in  law 
in  such  cases  made  and  provided,  to  show  cause  if  any  they  have,  why 
a  writ  of  injunction  should  not  issue  herein  directed  to  the  sheriff  of  the 


388  Water  and  Mineral  Cases.  [Louisiana 

parish  of  Acadia,  and  to  the  said  police  jury  of  the  parish  of  Acadia,  re- 
straining, prohibiting,  and  enjoining  them  and  each  of  them  from  selling, 
or  attempting  to  offer  for  sale,  the  property  of  petitioner  illegally  assessed 
as  aforesaid  for  the  year  1907,  for  the  parochial  taxes,  general  and  special. 
That,  after  due  hearing  on  said  rule,  peremptory  injunction  issue  herein 
so  restraining,  enjoining,  and  prohibiting  said  Jos.  L.  Murrel  and  the 
police  jury  of  the  parish  of  Acadia,  from  selling,  or  attempting  to  sell, 
or  offering  for  sale,  the  property  of  petitioner,  for  the  taxes  illegally 
levied  upon  the  assessment  of  petitioner's  property  as  appears  on  the  as- 
sessment rolls  for  the  taxes  for  the  year  1907,  parochial,  general,  and 
special,  as  aforesaid. 

That  Jos.  L.  Murrel,  the  said  police  jury  of  the  parish  of  Acadia, 
through  its  president,  J.  Kenneth  Toler,  and  A.  C.  Lormand,  assessor  of 
the  parish  of  Acadia,  be  cited  to  answer  hereto,  and,  after  due  hearing 
that  the  assessment  and  taxes  against  petitioner's  property  for  parochial 
taxes,  general  and  special,  be  declared  null  and  void ;  same  being  exempt 
from  taxation  for  parochial  purposes  under  the  Constitution  of  the  State 
of  Louisiana.  That  said  A.  C.  Lormand  and  the  said  police  jury  be  di- 
rected to  strike  out  the  assessment  of  the  property  of  petitioner  on  the 
assessment  rolls  as  made  by  said  assessor  and  approved  by  the  police 
jury  of  the  parish  of  Acadia,  acting  as  a  board  of  review,  in  so  far  as 
said  assessment  attempts  to  fix  a  charge  against  petitioner  or  its  prop- 
erty, the  parochial  taxes,  general  and  special,  and  has  been  illegally  as- 
sessed and  the  parochial  taxes  levied  thereon  by  the  police  jury  for  the 
parochial  taxes  for  the  year  1907,  are  null  and  void,  and  that  petitioner's 
property  be  declared  to  be  relieved  from  the  payment  of  said  parochial 
taxes. 

Petitioner  further  prayed  that  said  writ  of  injunction  be  maintained 
and  perpetuated,  and  prayed  for  general  and  equitable  relief  in  the  prem- 
ises. 

On  reading  the  petition,  the  district  court  ordered  that  a  rule  nisi  issue 
directed  to  the  sheriff  of  the  parish  of  Acadia,  ex  officio  tax  collector, 
the  police  jury  of  the  parish  of  Acadia,  and  the  assessor  of  said  parish, 
to  show  cause,  if  any  they  had,  why  a  writ  of  injunction  should  not  issue 
and  the  relief  prayed  for  be  not  granted  as  prayed  for. 

On  trial  of  the  rule  a  preliminary  writ  of  injunction  was  ordered  to 
issue,  and  was  accordingly  issued. 

The  defendants  thereafter  answered.  After  pleading  a  general  denial, 
they  admitted  that  the  taxes  sought  to  be  annulled  were  duly  and  legally 
assessed  against  the  property  of  the  plaintiff  set  out  in  its  petition,  and 
that  the  sheriff  and  ex  officio  tax  collector  was  proceeding  according  to 
law  to  enforce  the  payment  of  said  taxes  when  the  writ  of  injunction 


1910]  Peteoleum  Co.  v.  Mueeel  et  ae.  389 

issued  herein.  Defendants  specially  denied  that  petroleum  oil  was  a  min- 
eral either  in  the  common  acceptation  of  the  term  or  in  a  scientific  sense  or 
in  the  sense  contemplated  by  the  Constitution,  and  they  specially  denied 
that  prospecting  for  same  is  in  any  sense  a  mining  operation. 

Defendants  averred:  That  whatever,  if  any,  prospecting  for  or  ob- 
taining of  petroleum  oil  was  done  or  performed  by  the  plaintiff  in 
Acadia  parish  by  or  with  the  aid  of  or  upon  any  of  the  property  set  out 
in  its  petition,  was  done  and  performed  simply  and  solely  by  drilling 
small  holes,  less  than  12  inches  in  diameter,  into  the  ground,  and  no  pits 
nor  excavations  nor  mines  have  been  by  the  plaintiff  opened  or  operated 
in  Acadia  parish,  and  such  operations  as  it  had  conducted  were  not  min- 
ing operations  in  the  common  acceptation  of  the  term,  nor  in  a  technical 
sense,  nor  within  the  intendment  and  meaning  of  the  Constitution  of 
the  State  of  Louisiana,  and  none  of  the  property  set  out  in  plaintiff's 
petition  was  exempt  from  taxation. 

That  none  of  the  property  enumerated  in  plaintiff's  petition  was  exempt 
from  the  payment  of  the  special  road  tax  for  the  further  and  additional 
reason  that  the  said  tax  was  duly  and  legally  voted  by  the  taxpayers  of 
the  road  district  in  which  the  property  was  located  long  after  the  adop- 
tion of  the  Constitution  of  1898. 

In  view  of  the  premises,  defendants  prayed  that  the  exceptions  filed 
by  them  in  answer  to  the  rule  nisi  be  maintained  and  plaintiff's  suit  be 
dismissed  and  injunction  dissolved  and  for  ten  per  cent,  attorneys'  fees 
as  allowed  by  law,  and,  if  the  said  exceptions  be  not  maintained,  then 
upon  trial  of  the  merits  that  the  demands  of  the  plaintiff  be  denied  and 
rejected,  and  that  the  writ  of  injunction  issued  herein  be  dissolved,  and 
that  the  defendants  have  judgment  against  the  plaintiff  and  the  surety 
on  its  injunction  bond  in  solido  as  provided  by  law  for  attorneys'  fees 
at  the  rate  of  ten  per  centum  per  annum  on  the  amount  of  the  taxes  of 
which  the  payment  was  enjoined  with  interest,  penalties,  and  cost  added 
thereto,  and  for  cost  and  all  necessary  orders  and  decrees,  and  for  gen- 
eral relief. 

The  district  court  rendered  judgment  ordering,  adjudging,  and  decree- 
ing that  the  writ  of  injunction  which  had  issued  in  the  case  be  maintained 
and  perpetuated,  and  that  the  sheriff  of  the  parish  of  Acadia,  and  the 
police  jury  of  the  aforesaid  parish,  be  forever  restrained,  pro- 
hibited, and  enjoined  from  selling,  or  attempting  to  offer  for  sale,  the 
property  described  in  plaintiff's  petition  herein  for  general  and  special 
parochial  taxes  levied  on  the  property  of  the  plaintiffs  as  is  assessed  on 
the  assessment  rolls  of  the  parish  of  Acadia  for  the  year  1907. 

It  further  ordered,  adjudged,  and  decreed  that  the  assessment  and 
taxes  against  the  property  of  the  plaintiff  referred  to  in  this  petition  were 


390  Watek  and  Minekal  Cases.  [Louisiana 

null  and  void,  and  that  the  said  property  was  exempt  from  taxation, 
special  and  general,  for  parochial  purposes  under  the  Constitution  of  the 
State  of  Louisiana  for  the  year  1898.  The  assessor  of  the  parish  of  Aca- 
dia and  the  police  jury  of  said  parish,  through  its  president  or  its  proper 
officers,  were  commanded  and  directed  to  strike  out  the  assessment  on  the 
property  of  the  plaintiff,  J.  M.  Guffey  Petroleum  Company,  from  the 
assessment  rolls  as  made  by  the  assessor  of  the  parish  of  Acadia,  and  of 
the  police  jury  of  the  said  parish,  acting  as  a  board  of  review  in  so  far  as 
said  assessment  attempted  to  fix  a  charge  against  the  said  J.  M.  Guffey 
Petroleum  Company  and  a  lien  on  its  property  for  parochial  taxes,  either 
general  or  special,  or  both. 

It  further  ordered,  adjudged,  and  decreed  that  the  taxes  levied  by  the 
police  jury  of  the  parish  of  Acadia,  both  general  and  special,  for  the 
year  1907,  be,  and  they  are  hereby,  decreed  null  and  void;  that  the 
property  of  the  plaintiff  be  relieved  from  the  payment  of  the  said  paroch- 
ial taxes  general  and  special,  as  aforesaid. 

It  further  ordered,  adjudged,  and  decreed  that  the  costs  of  this  suit 
be  paid  by  the  defendants. 

Defendants  have  appealed. 

Opinion. 

Defendants  in  injunction  in  their  brief  maintain  that  at  the  time  it  is 
a  matter  of  history,  when  the  Constitution  of  1898  was  framed,  there 
were  no  oil  wells  in  the  State  of  Louisiana,  no  profitable  deposits  of  oil 
were  known  to  exist  within  the  state,  and  we  believe  we  are  safe  in 
saying  that  few  or  none  of  our  citizens  ever  dreamed  of  the  possibility 
of  Louisiana  becoming  a  producer  of  petroleum  oil  in  profitable  quanti- 
ties. Hence,  it  seems  to  us,  a  conclusive  presumption  that  not  one  of 
the  framers  of  our  Constitution  had  in  mind  any  such  thing  as  oil  or 
the  drilling  of  oil  wells  when  article  230  was  written. 

This  being  the  case,  the  only  possible  way  by  which  the  plaintiff  can 
obtain  the  exemption  under  the  language  used  is  to  show  conclusively 
that  the  drilling  of  oil  wells  and  the  handling  of  the  product  therefrom 
is  a  "mining  operation,"  not  only  in  a  technical  or  scientific  sense,  but  also 
within  the  common  acceptation  of  the  term. 

"The  words  of  a  law  are  generally  to  be  understood  in  their  usual 
signification,  without  attending  so  much  to  the  niceties  of  grammar  rules 
as  to  the  general  and  popular  use  of  the  words."   Civ.  Code,  art.  14. 

Let  us  then  see  what  is  really  a  "mine"  and  a  "mining  operation"  as 
"understood  in  their  most  usual  signification,"  as  shown  by  respectable 
authorities.     The  Century  Dictionary  defines  a  "mine"  to  be: 

"An  excavation  in  the  earth  made  for  the  purpose  of  getting  metal  ores, 
or  coal.    Mine  work  in  metal  mines  consists  in  sinking  shafts  and  winzes. 


1910]  Petroleum  Co.  v.  Mubbel  et  al.  391 

running  levels  and  "toping  out  the  contents  of  the  mines  thus  made  ready 
for  removal.  In  coal  mining  the  operations  differ  in  detail  from  those 
carried  on  in  connection  with  metal  mines,  but  are  the  same  in  principle. 
The  details  vary  in  coal  mining  with  the  position  and  thickness  of  the 
beds.  A  mine  differs  from  a  quarry  in  that  the  latter  is  usually  open  to 
the  day,  but  in  anv  mine  a  part  of  the  excavation  may  be  open  work  (see 
that  word)  as  in  running  an  adit  level  which  may  be  carried  a  consider- 
able distance  before  coming  covered  by  earth  or  rock.  When  the  term 
mine  is  used,  it  is  generally  understood  that  the  excavation  so  named 
is  in  actual  course  of  exploitation,  otherwise  some  qualifying  term  like 
abandoned  is  required.  No  occurrence  of  ore  is  designated  as  a  mine 
unless  something  has  been  done  to  develop  it  by  actual  mining  operations. 
There  are  certain  excavations  which  are  termed  neither  mines  nor  quar- 
ries, as,  for  instance,  places  where  clay  is  being  dug  out  for  brick ;  such 
places  are  frequently  (especially  in  England)  called  pits  and  also  open 
works.  With  a  few  and  not  easily  specified  exceptions  a  quarry  is  a 
place  where  building  stone  or  building  material  of  any  kind  (as  lime, 
cement,  etc.)  are  being  got;  a  mine  where  some  metal  or  metalliferous 
ore  is  in  the  process  of  exploitation.  *  *  *" 
The  same  authority  defines  "ore"  as: 

"A  metalliferous  mineral  or  rock,  especially  one  which  is  of  sufficient 
value  to  be  mined." 

It  will  be  noted  that  in  defining,  the  word  "excavation,"  usually  made 
use  of  in  describing  some  large  kind  of  opening,  is  employed.     It  will 
also  be  noted  that  only  three  objects  are  designated  as  being  those  for 
which  a  mine  is  opened,  that  is,  metal,  ores,  or  coal.     It  will  further 
be  noted  that  throughout  the  definition  the  words  "quarry"  and  "pits" 
both  also  signifying  large  openings  in  the  earth,  are  employed  as  almost 
synonymous  with  the  word  "mine,"  and  it  is  shown  from  the  language 
used  that  the  three  terms  are  extremely  similar,  so  much  so  that  con- 
siderable trouble  is  taken  to  explain  the  slight  difference  between  the 
three  terms.     A  reading  of  the  entire  definition  fixes  indelibly  upon  the 
mind  the  idea  that  a  "mine"  is:     First,  a  large  opening  into  the  ground 
like  a  pit  or  quarry;  second,  that  only  such  openings  are  mines  as  are 
made  for  the  purpose  of  getting  metal,  ores,  or  coal.     We  submit  that 
the  definition  above  quoted  is  an  absolutely  faithful  and  accurate  state- 
ment of  what  constitutes  a  "mine"  in  the  most  usual  signification  of  the 
word.     There  is  nothing  whatever  in  this  definition  which  would  even 
remotely  suggest  that  a  small  opening  less  than  12  inches  in  diameter 
drilled  into  the  ground  for  getting  out  oil  could  possibly  be  termed  a 
"mine."     It  is  shown  in  the  evidence  that  the  plaintiff's  wells  were  of 
this  character.     The  word  "mine"  ordinarily  conveys  to  the  intelligence 
the  idea  of  a  large  opening  into  the  ground  into  which  men  descend  for 
the  purpose  of  getting  metal,  ores,  or  coal,  and  large  enough  to  accom- 
modate such  operations.     This  is  the  ordinary  meaning  of  the  word  and 


392  Water  and  Mineral  Cases.  [Louisiana 

the  sense  in  which  it  is  employed  in  the  Constitution.    Now,  if  an  oil  well 
be  not  a  mine— and  it  most  assuredly  is  not— then  the  drilling  or  opera- 
tion of  such  a  well  could  not  possibly  be  termed  a  "mining  operation." 
A  productive  oil  well  or  aggregation  of  them  is  always  universally  and 
invariably  known  as  an  "oil  field."    Who  ever  heard  of  such  being  called 
a  "mine"?    If  an  oil  well  was  a  "mine"  in  the  usual  signification  of  the 
word,  surely  some  time,  somewhere,  some  intelligent  person  would  be 
heard  to  designate  it  by  that  term ;  but  it  is  never  done.    Now  a  "mining 
operation"  must  certainly  be  something  having  to  do  with  a  mine,  and, 
if  an  oil  well  is  never  known  in  the  ordinary  and  customary  use  of 
language  as  a  "mine,"  then  neither  the  making  nor  operating  of  one  would 
possibly  be  considered  a  mining  operation  in  the  ordinary  signification 
of  the  word.    He  who  works  in  a  mine  is  termed  a  "miner" ;  but  no  one 
ever  heard  of  a  laborer  at  an  oil  well  being  called  a  "miner."     It  is 
shown  by  the  testimony  that  an  oil  well  is  too  small  for  a  man  to  get 
into,  even  if  such  was  necessary  or  desirable,  which  it  is  not.    We  think 
it  absolutely  clear  that  the  words  "mine,"  or  "mining  operation,"  never 
refer  to  oil  wells  or  oil  production  in  ordinary  parlance.     But,  even  if 
there  should  be  any  doubt  upon  that  point,  it  must  be  resolved  against 
the  plaintiff,  because  they  are  claiming  an  exemption  under  the  Consti- 
tution, and  it  must  be  construed  strictly,  and  unless  they  show  them- 
selves clearly  entitled  to  this  exemption,  they  must  lose.    It  seems  to  us 
self-evident  that  the  intention  of  the  Constitutional  Convention  in  fram- 
ing article  230  was  to  hold  out  to  capital  an  inducement  to  open  and 
work  mines  in  the  state,  not  for  the  sake  of  having  them  opened,  but 
to  give  employment  to  thousands  of  laborers  who  would  become  a  per- 
manent addition  to  our  population  and  who  would  be  home  builders  and 
an  incalculable  benefit  to  the  state.     It  is  evident  that  they  had  in  con- 
templation mines  in  the  true  sense  of  the  word;  that  is,  mines  of  coal, 
iron  ore,  and  such,  which  are,  to  a  large  extent  permanent  in  their  nature, 
and  which  would  afford  directly  employment  to  large  numbers  of  people. 
They  did  not  have  in  mind  oil  wells  and  oil  fields,  which  are  temporary 
and  evanescent  in  their  nature;  there  is  nothing  permanent  about  them. 
It  is  evident  that,  if  they  had  actually  had  oil  fields  in  mind  in  framing 
the  provisions  of  article  230,  such  would  not  have  been  brought  within 
the  exemption  for  the  simple  reason  they  afford  employment  to  compar- 
atively very  few;  they  are  but  little  benefit  to  the  state.     The  owners 
resist  every  raise  made  in  the  assessment  of  their  property,  and,  if  that 
does  not  avail,  they  seek  to  cloak  themselves  with  article  230.     The 
business  is  of  such  temporary  character  that  by  the  time  an  increase  can 
be  made  in  the  assessment  the  property  has  begun  to  wane  in  value. 


1910]  Petkoleum  Co.  v.  Mueeel  et  al.  393 

Notwithstanding  the  enormous  quantities  of  oil  produced  at  the  oil  field 
in  question,  not  enough  population  has  been  gathered  there  to  make  even 
an  incorporated  village;  there  are  no  works  of  permanent  improvement 
found  there ;  and,  since  the  production  has  greatly  decreased,  it  is  a  dreary- 
place,  and  in  a  few  more  years  will  be  a  worthless  one.  Contrast  this 
locality  with  Birmingham,  Pittsburg,  and  places  where  there  are  mines 
in  the  proper  and  usual  meaning  of  the  term.  It  is  shown  in  the  testimony 
that,  although  the  plaintiff's  production  of  oil  was  at  times  as  high  as 
29,000  barrels  per  month,  they  actually  failed  to  prove  that  as  many 
as  five  hands  were  continuously  employed  by  them.  And  this  brings 
us  to  the  consideration  of  another  point  in  the  case. 

BREAUX,  C.  J.  Our  associate,  Justice  Nicholls,  prepared  the 
foregoing  opinion.  As  he  is  unable  to  be  present,  he  sent  it  to  us  from 
his  room  of  illness  and  suffering,  for  consideration. 

It  was  adopted  by  all  the  members  of  the  court. 

In  the  last  sentence  reference  is  made  to  another  point,  and  the  writer 
stopped. 

We  are  decidedly  of  the  opinion  that  the  "Guffey  Petroleum  Company" 
is  not  engaged  in  mining  operations,  and  that  the  operations  do  not  come 
within  the  terms  of  the  article  of  the  Constitution  exempting  such  opera- 
tions from  taxation. 

Boring  for  oil  is  not  a  "mining  operation."  Nor  is  the  gushing  process 
nor  the  pumping  up  of  oil  "mining." 

"Mining"  has  been  defined  as  a  process  by  which  useful  minerals  are 
extracted  from  the  earth.  This  does  not  include  the  process  whereby 
petroleum  oil  is  obtained — not  a  mineral  within  the  intendment  of  the 
cited  article  of  the  Constitution. 

Further,  in  regard  to  mining,  it  may  be  said  that  the  art  of  mining 
consists  of  processes  whereby  ores  or  other  minerals  are  obtained  from 
the  earth — minerals  known  as  solids.  They  existed  in  the  early  dates  in 
liquid  or  gaseous  state — but  now  they  are  solids. 

Mineral  waters  are  not  classed  as  minerals;  in  fact,  no  absolute  line 
of  demarcation  can  be  drawn  between  ordinary  and  mineral  water. 

Nor  is  mineral  oil  a  mineral  within  the  intendment  of  the  article  of 
the  Constitution  invoked  by  plaintiff.  Oil  does  not  have  the  physical 
properties  of  minerals  which  can  be  extracted  by  mining. 

Be)rond  general  expressions  upon  the  subject,  we  have  not  found  a 
single  decision  in  which  it  was  decided  that  the  process  of  obtaining 
petroleum  oil  from  the  earth  is  a  mining  operation. 

Has  the  J.  M.  Guffey  Petroleum  Company  not  been  properly  assessed, 
is  the  question  presenting  the  next  issue  for  decision.  In  our  opinion 
the  assessment  is  now  valid. 


394  Water  and  Mineral  Cases.  [Louisiana 

It  was  assessed  as  the  Guffey  Oil  Company.  Being  the  same  company 
(the  Guffey  Petroleum  and  the  Guffey  Oil  Company),  the  decisions 
which  hold  that  property  must  be  assessed  in  the  name  of  the  record 
owner  are  not  in  point.  They  are  cited  by  plaintiff.  They  do  not  sup- 
port the  company's  contention.  Here  the  only  question  is  whether  there 
was  error  in  the  name  of  the  owner  to  the  extent  that  it  vitiated  an  asses- 
ment.  We  conclude  the  record  owner  is  the  J.  M.  Guffey  Petroleum  Com- 
pany. 

It  is  sufficiently  described  by  the  name  of  "Guffey  Oil  Company." 

Since  the  year  1907,  the  assessment  has  been  made  in  the  name  of 
the  Guffey  Oil  Company.  No  complaint  has  been  made  before  this  suit 
was  brought.  It  is  too  late  now  to  complain  of  the  insufficiency  of  the 
name.  The  plaintiff  knew  of  this  assessment — doubtless  paid  other  taxes 
in  that  name. 

The  testimony  does  not  show  that  plaintiff  employed  a  number  of 
men  over  five.  There  may  be  proof  of  the  employment  of  that  number. 
If  there  is,  it  has  not  been  found. 

It  may  be  lurking  somewhere  on  one  of  the  pages  of  the  voluminous 
record.     The  employment  of  five  hands  is  essential  to  exemption. 

Having  arrived  at  the  conclusion  that  the  plaintiff  is  not  exempt,  that 
relieves  us  from  the  necessity  of  deciding  other  points  than  those  de- 
cided. 

For  reasons  assigned,  it  is  ordered,  adjudged,  and  decreed  that  the 
judgment  appealed  from  is  avoided,  annulled,  and  reversed  at  the  costs 
of  plaintiff  in  injunction  in  both  courts.     The  injunction  is  dissolved. 

It  is  further  ordered,  adjudged,  and  decreed  that  the  property  assessed 
is  subject  to  taxation,  and  that  its  owners  owe  the  amount  of  the  claim 
made  by  defendant  in  injunction. 

On  Application  for  Rehearing. 

LAND,  J.  We  may  concede  the  contention  of  the  learned  counsel 
for  the  plaintiff  that,  scientifically  speaking,  petroleum  is  a  "mineral," 
and  that  its  extraction  from  the  bowels  of  the  earth  is  a  "mining  oper- 
ation." But  petroleum  is  a  substance  of  a  peculiar  character,  and  differs 
in  manv  respects  from  coal  and  other  minerals  which  have  a  fixed  situs. 
Petroleum  also  requires  an  entirely  different  process  of  mining,  so  called. 
As  late  as  1897  it  was  deemed  necessary  to  pass  an  act  of  congress 
to  class  petroleum  as  a  mineral  in  the  sense  of  the  mining  laws  of  the 
United  States.  Act  Feb.  11,  1897,  c.  216,  29  Stat.  526;  section  2333, 
Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  1434). 

In  1898  no  oil  or  gas  wells  existed  in  the  state  of  Louisiana,  and  it  was 
not  until  1910  that  oil  and  gas  were  classed  with  "other  minerals."    Acts 


1910]  Petroleum  Co.  v.  Muebel  et  al.  395 

Nos.  172  and  196  of  1910.  The  Civil  Code  refers  to  "mines  and  quarries" 
as  worked  or  opened,  and  not  opened,  and  as  the  subjects  of  usufruct 
and  of  lease.    Articles  552,  2738. 

The  term  "mining  operations,"  as  used  in  the  Constitution  of  1898,  if 
taken  in  its  most  general  sense,  may  be  construed  to  include  all  opera- 
tions to  obtain  anything  from  the  earth  which  is  not  animal  or  vegetable, 
such  as  water,  gases,  and  mineral  oils. 

But  in  its  ordinary  acceptation  the  verb  "mine"  means  to  "dig"  in 
the  earth  to  get  ore,  metals,  coal,  or  precious  stones,  and  the  noun  "mine" 
means  a  pit  or  excavation  in  the  earth,  from  which  metallic  ores,  precious 
stones,  or  other  mineral  substances  are  taken  by  digging;  distinguished 
from  the  pits  from  which  stones  for  architectural  purposes  are  taken,  and 
which  are  called  "quarries."  Webster's  International  Dictionary,  verb. 
The  question  before  us  is  whether  the  term  "mining  operations"  was  used 
by  the  framers  of  the  Constitution  of  1898  as  a  most  general  classifi- 
cation of  things,  or  in  its  most  usual  signification.  One  of  the  canons 
for  the  construction  of  laws  is  thus  expressed  in  Civ.  Code,  art.  14: 

"The  words  of  a  law  are  generally  to  be  understood  in  their  most 
usual  signification,  without  attending  so  much  to  the  niceties  of  gram- 
mar rules  as  to  the  general  and  popular  use  of  the  words." 

The  same  canon  is  also  expressed  in  article  1946  of  the  Civil  Code : 

"The  words  of  a  contract  are  to  be  understood,  like  those  of  a  law, 
in  the  common  and  usual  signification,  without  attending  so  much  to 
grammatical  rules,  as  to  general  and  popular  use." 

Another  rule  of  construction  is  that  exemptions  from  taxation  are 
strictly  construed,  and  doubt  as  to  the  legislative  intent  is  fatal  to  the 
claim  of  immunity. 

The  claim  of  exemption  urged  by  the  plaintiff  is  at  least  doubtful,  and 
for  that  reason  must  be  denied. 

Rehearing  refused. 


396 


Wateb  and  Mineral  Cases. 


[Kansas 


BELLEVUE  GAS  &  OIL  CO.  v.  PENNEIL. 

[Supreme  Court  of  Kansas,  December  7,  1907.] 

76  Kan.  785,  92  Pac.  1101. 

1.  Gas  Lease — Construction  of. 

In    construing    an    oil   and   gas   lease,   the   whole    instrument,    the    situation   of 
the  parties,  and  the  subject-matter  of  the  contract    will    be    considered    together. 

2.  Same — Provision  to  Pipe  to  House. 

A   provision   in   a    lease   "to   pipe   gas   to   the   house   for    domestic   purposes    as 
60on  as  well  is  completed"  construed  to  mean  without  charge  for  the  gas. 


CASE   NOTE. 

Peculiar    Rules    of    Construction 
Applied  to  Gas  and  Oil  Leases. 

I.     Oil    and     Gas     Leases     in 
Separate  Class,  396. 

Distinguished  from  Ordi- 
nary Leases,  399. 

Distinguished  prom  License, 
399. 

Construed  Liberally,  400. 

Construed  with  Reference 
to  Circumstances,  Par- 
ties and  Subject-Matter, 
400. 

Real  Consideration  Con- 
sidered, 402. 

Nature  of  Lessee's    Title, 

403. 
A.     Inchoate — No      Estate 
Vests       until      Min- 
eral Found,  403. 

Vested  Right  When 
Found,  404. 

Relation  op  Landlord 
and  Tenant,  405. 

When  a  Mere  Option, 
405. 

Sale  op  Oil  in  Place, 
etc.,  406. 

Corporeal  or  Incorpo- 
real Hereditament, 
407. 

Freehold,  408. 

Chattel  Real,  408. 


II. 

III. 

IV. 
V. 


VI. 


VII. 


B 


C. 


D 


E. 


F. 


G. 
H. 


I.   Oil    and    Gas    Leases    in    Separate 
Class. 

The  peculiar  wandering  character  of 
gas  and  oil  precludes  ownership  in  their 
natural  state,  and  hence  they  are  not 
the  subjects  of  sale  and  conveyance  until 
they  have  been  reduced  to  possession 
and  placed  under  control  by  being  di- 
verted from  their  natural  pass  into  arti- 
ficial receptacles.  In  gas  and  oil  leases 
the  real  subject  of  the  contract  is  the 
mining  of  the  gas  or  oil  that  may  be 
found,  on  the  terms  specified.  The  pre- 
liminary exploring  is  a  mere  incident 
that  goes  for  nothing  if  unsuccessful, 
and  unless  oil  or  gas  is  found  in  paying 
quantities  there  is  not,  and  was  not  at 
the  inception  of  the  contract,  anything 
to  which  it  could  attach,  so  the  title 
under  such  contract  is  at  least  inchoate 
until  the  result  of  the  drilling  is  ascer- 
tained, and  if  barren  territory  is  devel- 
oped, then  there  is  no  lease,  no  continu- 
ing contract,  no  conveyance  of  title,  be- 
cause there  is  nothing  to  pass  under  the 
agreement.  Added  to  this  peculiarity  is 
the  custom  of  making  such  contract 
clearly  in  advance  of  the  demand  for 
the  product.  The  impracticability  of 
drilling  until  lines  of  transportation  ap- 
proach within  reasonable  reach,  the 
delays  in  the  beginning  of  operations 
secured  by  the  payment  of  a  small  sum 
called  rent,  sometimes  justifiable  and 
sometimes  unreasonable  and  merely  for 


1907] 


Bellevue  Gas  &  Oil  Co.  v.  Penxell. 


397 


On  August  13,  1903,  the  defendant  in  error  executed  and  delivered  a 
gas  lease  to  S.  Breckenridge,  which  was  subsequently  assigned  to  and 
is  now  the  property  of  the  plaintiff  in  error.  It  reads :  "Lease  for  Oil 
and  Gas.  This  agreement,  made  this  13th  day  of  August,  1903,  by  and 
between  S.  W.  Pennell  of  Chautauqua  County,  Kansas,  of  the  first  part, 
and  S.  Breckenridge  of  Santa  Paula  of  Ventura  County,  State  of  Cali- 
fornia, of  the  second  part,  witnesseth:  That  for  and  in  consideration 
of  the  sum  of  one  dollar,  the  receipt  of  which  is  hereby  acknowledged,  and 


speculative  purposes,  the  possibility  and 
occasional  practice  of  extracting  the 
fluids  from  under  other  lands  through 
wells  on  the  premises  of  another,  the 
uncertainty  of  the  discovery,  the  large 
profits  sometimes  realized,  the  heavy 
expense  of  drilling  the  test  well,  the 
total  loss  of  labor  and  expense  in  case  of 
failure, — these  and  other  like  considera- 
tions have  led  courts  to  place  oil  and 
gas  contracts,  on  account  of  the  known 
characteristics  of  the  business,  in  a  class 
of  their  own.  Such  contracts  are  not 
ordinary  leases  or  within  the  purview  of 
a  statute  concerning  the  relation  of 
landlord  and  tenant.  New  American  Oil 
&  Min.  Co.  v.  Troyer,  166  Ind.  402,  77 
X.  E.  739    (1906). 

Although  a  gas  and  oil  lease  contains 
provision  for  royalty  or  the  payment  of 
a  small  annual  rental,  the  true  consid- 
eration is  the  development  of  the  prop- 
erty, and  the  primary  and  essential  con- 
dition to  any  extension  after  the  lapse 
of  the  time  named  is  the  finding  of  oil 
or  gas  in  paying  quantities  within  that 
time,  and  the  secondary  consideratior 
that  the  rent  reserved  for  the  oil  or 
gas  found  should  be  paid  in  conformity 
with  the  covenants  in  relation  thereto, 
and  the  lessee  will  not  be  permitted  to, 
upon  making  the  small  annual  payments, 
hold  the  property  beyond  the  time  speci- 
fied. Indiana  Natural  Gas  &  Oil  Co.  v. 
Granger,  32  Ind.  App.  559,  70  N.  E. 
395    (1904). 

The  ordinary  oil  lease,  whereby  one 
grants  to  another  gas  and  oil  under 
certain  land,  with  the  right  to  enter 
thereon  and  operate  for  the  oil,  provid- 


ing for  the  drilling  of  wells  or  the  pay- 
ment of  rent  and  the  rendering  of  roy- 
alty, etc.,  is  not  a  lease  as  the  word 
"lease"  is  usually  interpreted.  It  is  a 
covenant  by  the  owner  of  land  to  an- 
other person  whereby  the  latter  has  the 
exclusive  right  to  enter  upon  and  ex- 
plore the  land  for  gas  and  oil  and  prose- 
cute such  business,  occupying  only  such 
portion  necessarily  required  for  that 
purpose.  It  has  been  said  that  gas 
and  oil  contracts  belong  to  a  class  of 
their  own  and  that  courts  will  "look 
critically  into  such  instruments  for  the 
real  intention  of  the  parties,  because  it 
so  frequently  happens  that  they  cannot 
be  enforced  according  to  the  strict  letter 
of  the  contract."  While  it  is  true  that 
the  provisions  in  this  class  of  contract 
as  a  rule  are  ambiguous,  indefinite,  and 
uncertain,  it  is  also  true  that  the  parties 
are  to  be  limited  to  the  contract  actu- 
ally made,  and  for  the  purpose  of  as- 
certaining the  true  meaning  of  the  lan- 
guage employed  courts  will  look  to  the 
nature  of  the  instrument  and  the  condi- 
tions under  which  it  was  made,  the 
situation  of  the  parties,  the  nature  of 
their  business  and  the  interest  to  be 
protected,  not  for  the  purpose  of  ap- 
plying it,  but  for  the  purpose  of  effect- 
uating their  intention.  Stahl  v.  Illinois 
Oil  Co.  (Ind.  App.),  90  N.  E.  632 
(1910). 

Gas  and  oil  leases  are  in  a  class  by 
themselves.  They  are  not  strictly 
leases,  as  defined  and  treated  in  the  law 
of  landlord  and  tenant.  They  are  in  the 
nature  of  written  licenses,  with  a  con- 
ditional  grant   conveying    the    grantor's 


398 


Water  and  Mineral  Cases. 


[Kansas 


of  the  rents  and  royalties  hereinafter  specified,  the  party  of  the  first  part 
has  and  does  grant  and  lease  to  the  party  of  the  second  part  the  ex- 
clusive right  of  searching  for  and  producing  petroleum  and  natural  gas, 
with  the  right  necessary  to  do  these  things,  and  the  right  to  assign,  sub- 
let, and  subdivide  a  certain  tract  or  parcel  of  land  situate  in  Belleville 
Township,  Chautauqua  County,  State  of  Kansas,  bounded  and  described 
as  follows:    On  the  north  by  section  line  between  8  and  17;  on  the  east 


interest  in  the  gas  or  oil  well  conditioned 
that  gas  or  oil  is  found  in  paying  quan- 
tities. Dickey  v.  Coffeyville  Vitrified  B. 
&  T.  Co.,  69  Kan.  106,  76  Pac.  398 
(1904). 

Oil  leases  bear  a  well-understood  char- 
acter. The  contemplated  benefit  to  the 
lessor  consists  in  royalties,  and  the  pro- 
vision for  alternative  rent  is  not  one 
which  the  lessee  may  adopt  and  thereby 
relieve  himself  from  drilling  and  operat- 
ing, at  his  pleasure.  Its  purpose  is  to 
incite  speedy  development  of  the  prop- 
erty and  hence  early  payment  of  roy- 
alties. The  lessee  has  the  right  to  enter 
and  explore,  and  to  operate  if  oil  or  gas 
is  discovered,  but  no  estate  in  the  land 
vests  until  mineral  is  found  and  worked. 
Until  that  time,  the  preliminary  right 
is  of  such  a  character  that  it  can  be  lost 
by  abandonment  without  the  lapse  of 
time  prescribed  by  the  statute  of  limi- 
tations. Rawlings  v.  Armel,  70  Kan.  778, 
79  Pac.  683    (1905). 

An  agreement  giving  the  lessee  the 
exclusive  right  to  mine  for  and  produce 
petroleum  and  natural  gas  from  a  cer- 
tain tract  of  land  and  the  possession  of 
so  much  of  said  land  as  may  be  neces- 
sary therefor,  is  merely  permission 
without  consideration  to  occupy  and  use 
the  premises  for  an  indefinite  time,  and 
without  the  grant  of  a  permanent  in- 
terest in  the  land  of  any  kind  whatever. 
It  is  neither  a  lease  nor  an  easement, 
but  merely  an  oral  license  to  occupy  for 
a  temporary  purpose.  Fowler  v.  Dela- 
plain,  79  Ohio  St.  279,  87  N.  E.  260, 
21  L.  P.  A.   (N.  S.)   100  (1909). 

Gas  is  a  mineral,  and  while  in  situ  is 
part  of  the  land,  and  therefore  posses- 


sion of  the  land  is  possession  of  the  gas. 
But  this  deduction  must  be  made  with 
some  qualifications.  Gas,  it  is  true,  is  a 
mineral,  but  it  is  a  mineral  with  pe- 
culiar attributes  which  require  the  ap- 
plication of  precedents  arising  out  of 
ordinary  mineral  rights  with  much  more 
careful  consideration  of  the  principles 
involved  than  the  mere  decisions.  Water 
also  is  a  mineral,  but  the  decisions  in 
ordinary  cases  of  mining,  etc.,  have 
never  been  held  as  unqualified  precedents 
in  regard  to  flowing  or  even  to  percolat- 
ing waters.  Water  and  oil,  and  still 
more  strongly  gas,  may  be  classed  by 
themselves,  if  the  analogy  be  not  too 
fanciful,  as  minerals  ferae  naturae.  In 
common  with  animals,  and  unlike  other 
minerals,  they  have  the  power  and  the 
tendency  to  escape  without  the  volition 
of  the  owner.  Their  "fugitive  and  wan- 
dering existence  within  the  limits  of  a 
particular  tract  is  uncertain."  West- 
moreland &  Cambria  Natural  Gas  Co.  v. 
De  Witt,  130  Pa.  St.  235,  18  Atl.  724, 
5  L  E.  A.  731    (1889). 

The  right  of  the  lessee  or  grantee 
under  an  oil  lease  is  to  explore  for  and 
determine  the  existence  of  oil  or  gas 
under  the  land.  If  none  is  found,  the 
rights  of  the  grantee  cease  when  the 
explorations  are  finished.  If  oil  or  gas 
is  found  in  paying  quantities,  then  the 
contract  takes  effect  as  an  oil  lease,  and 
the  lessee  has  a  right  and  is  under  an 
obligation  to  operate  the  land  for  the 
production  of  oil  during  the  time  and 
upon  the  terms  fixed  by  the  lease.  A 
vested  title  cannot  ordinarily  be  lost  by 
abandonment  in  a  less  time  than  that 
fixed     by     the     statute     of     limitations 


1907] 


Bellevue  Gas  &  Oil  Co.  v.  Pennell. 


399 


by  lands  of  Mayfield  and  Lynn ;  on  the  south  by  lands  of  Mayfield  Place ; 
on  the  west  by  lands  of  Huff,  also  20  acres  S.  V2,  S.  W.  S.  E.  sec.  8,  tp. 
35,  r.  12.  To  have  and  to  hold  the  said  premises  for  the  term  of  two 
years  from  this  date  and  so  much  longer  as  oil  and  gas  can  be  produced 
in  paying  quantities  or  royalty  is  paid.  The  second  party  agrees :  ( 1 ) 
To  deliver  to  the  first  party  in  tanks  or  pipe  lines  the  one-sixth  part  of  all 
oil  produced  and  saved  on  these  premises;  (2)  If  gas  is  found  in  paying 
quantities  and  utilized  away  from  this  farm  to  pay  to  party  of  the  first 


unless  there  is  satisfactory  proof  of  an 
intention  to  abandon.  An  oil  lease 
stands  on  quite  different  ground.  The 
title  is  for  the  purpose  of  explora- 
tion only,  until  oil  is  found.  If  it  ia 
not  found,  no  estate  vests  in  the  lessee, 
and  his  title,  whatever  it  is,  ends  when 
the  unsuccessful  search  is  abandoned. 
If  oil  is  found,  then  the  right  to  produce 
becomes  a  vested  right,  and  the  lessee 
will  be  protected  in  exercising  it  in  ac- 
cordance with  the  terms  and  conditions 
of  his  contract.  Calhoon  v.  Neely,  201 
Pa.  St.  97,  21  Mor.  Min.  Rep.  754,  50 
Atl.  967   (1902). 

II.    Distinguished    from    Ordinary 
Leases. 

Mining  and  farming  leases  are  dis- 
similar, and  therefore  the  rules  appli- 
cable to  farming  leases  are  not  always 
applicable  to  leases  of  minerals.  Gowan 
v.  Christie,  L.  R.  2  H.  L.  (Sc.)  273,  5 
Moak  114,  8  Mor.  Min.  Rep.  688   (1873). 

A  different  rule  of  construction  is  ap- 
plied to  gas  and  oil  leases  from  that 
applied  to  ordinary  or  to  farming  leases. 
The  former,  where  a  royalty  is  reserved, 
is  not  considered  a  grant  of  the  prop- 
erty, but  a  right  of  possession  for  ex- 
ploration and  development  and  there  is 
always  a  covenant,  express  or  implied, 
for  diligent  search  and  operation.  Hug- 
gins  v.  Daley,  99  Fed.  606,  20  Mor.  Min. 
Rep.  377,  48  L.  R.  A.  320   (1900). 

Where  upon  consideration  of  all  the 
terms  of  a  contract  and  its  subject- 
matter  and  object,  its  manifest  purpose 
is  designated  "the  exclusive  privilege 
for  the  purpose  only  of  digging,  mining, 


and  preparing  for  shipment  and  ship- 
ping phosphate  rock"  on  described 
lands  of  the  specified  quantity  and 
quality  contained  in  said  lands,  in  re- 
turn for  which  a  royalty  of  seventy-five 
cents  per  ton  is  to  be  paid,  such  con- 
tract is  not  one  for  an  ordinary  or  gen- 
eral use  and  occupation  of  the  land,  but 
the  right  given  is  special  and  precisely 
limited."  Hiller  v.  Walter  Ray  &  Co. 
(Fla.),   52   So.   623    (1910). 

Oil  leases  or  contracts  stand  on  an 
entirely  different  basis  from  any  other 
leasehold  agreements.  The  work  which 
is  to  be  done  is  ordinarily  experimental 
and  speculative.  If  oil  is  not  found,  no 
estate  vests  in  the  lessee.  Eaton  v.  Al- 
legheny Gas  Co.,  122  N.  Y.  416,  25  N.  E. 
981  (1890)  ;  Conkling  v.  Krandusky,  127 
App.  Div.  761,  112  N.  Y.  Supp.  13 
(1908). 

A  different  rule  of  construction  ob- 
tains as  to  oil  and  gas  leases  from  that 
applied  to  ordinary  leases  or  to  other 
mining  leases,  and  owing  to  the  peculiar 
nature  of  the  mineral  and  the  danger  of 
loss  to  the  owner  from  drainage  by  sur- 
rounding wells,  such  leases  are  construed 
most  strongly  against  the  lessee,  and  in 
favor  of  the  lessor,  ^superior  Oil  &  Gas 
Co.  v.  Mehlin  (Okla.),  108  Pac.  545 
(1910). 


III.   Distinguished    from    License. 

An  instrument  conveying  premises  for 
a  term,  and  so  long  as  gas  or  oil  are 
produced  in  paying  quantities,  is  not 
strictly  a  lease,  but  a  license  coupled 
with  a  conditional  grant.    Herrington  v. 


400 


Water  and  Mineral  Cases. 


[Kansas 


part  one  hundred  dollars  per  annum  for  the  gas  from  each  well  so  used ; 
(3)  To  conduct  operations  so  as  to  least  interfere  with  farming  privi- 
leges; (4)  To  drill  no  well  within  600  feet  of  the  buildings  on  these 
premises  except  by  consent  of  the  first  party;  (5)  To  complete  one  well 
every  sixty  days  thereafter,  until  ten  wells  are  completed  on  said  lands, 
provided  oil  is  found  in  paying  quantities  in  each  well  so  drilled ;  (6)  To 
pipe  gas  to  the  house  for  domestic  purposes  as  soon  as  well  is  completed. 
This  block,  of  which  this  is  a  part,  being  the  block  of  266  acres  in 


Wood,  6  Ohio  Cir.  Ct.  Rep.  326,  3  Ohio 
Cir.  Dec.  475    (1892). 

There  is  a  distinction  between  a  lease 
for  the  purposes  of  mining  and  a  mere 
license  to  take  mineral  from  the  land. 
Where  no  estate  is  granted,  it  is  a  mere 
license,  and  there  is  no  right  in  the  li- 
censee to  the  mineral  until  it  has  been 
separated  from  the  ground  and  reduced 
to  possession;  but  where  a  demise  of 
land  is  made  for  a  certain  number  of 
years  at  a  fixed  rent,  for  the  purpose  of 
mining,  giving  a  right  to  erect  buildings, 
etc.,  a  leasehold  estate  is  created.  Barns- 
dall  v.  Bradford  Gas  Co.,  225  Pa.  St. 
338,  74  Atl.  207   (1909). 

IV.   Construed    Liberally. 

Interpretation  of  lease  should  be  lib- 
eral, not  narrow  and  technical,  so  as  to 
gather  from  the  whole  instrument  the 
true  intent  of  the  parties.  Mickle  &  Co. 
v.  Douglas,  75  Iowa  78,  17  Mor.  Min. 
Rep.  137,  39  N.  W.  198  (1888)  ;  Harlow 
v.  The  Lake  Superior  Iron  Co.,  36  Mich. 
105,  9  Mor.  Min.  Rep.  47  (1877)  ;  Bett- 
man  v.  Harness,  42  W.  Va.  433,  18  Mor. 
Min.  Rep.  500,  26  S.  E.  271,  36  L.  R.  A. 
566    (1896). 

Owing  to  its  peculiar  nature  an  oil 
or  gas  lease  is  construed  most  strongly 
against  the  lessee  and  in  favor  of  the 
lessor.  Superior  Oil  &  Gas  Co.  v.  Meh- 
lin    (Okla.),  108  Pac.  945   (1910). 

V.   Construed  with   Reference  to  Cir- 
cumstances,  Parties,   and   Sub- 
ject-Matter. 

It  is  well  understood  among  oil  op- 
erators  that   the   fluid    (gas   or   oil)    is 


found  deposited  in  a  porous  sand  rock, 
at  a  distance  ranging  from  five  hundred 
to  three  thousand  feet  below  the  surface. 
This  rock  is  saturated  throughout  its 
extent  with  oil,  and  when  the  hard 
stratum  overlying  is  pierced  by  the  drill, 
the  oil  and  gas  find  vent,  and  are  forced 
by  the  pressure  to  which  they  are  sub- 
jected into  and  through  the  well  to  the 
surface.  After  this  pressure  is  relieved 
by  the  overflow,  the  wells  become  less 
active,  the  movement  of  the  oil  in  the 
sand  rock  grows  sluggish,  and  it  be- 
comes necessary  to  pump  the  wells  to 
quicken  the  movement  of  the  oil  from 
the  surrounding  rock,  and  lift  it  from 
the  chamber  at  the  bottom  of  the  well  to 
the  surface.  An  oil  or  gas  well  may 
thus  draw  its  product  from  an  indefinite 
distance  and  in  time  exhaust  a  large 
space.  Exact  knowledge  on  this  subject 
is  not  at  present  obtainable,  but  the  va- 
grant character  of  the  mineral,  and  the 
porous  sand  rock  in  which  it  is  found 
and  through  which  it  moves,  fully  justify 
the  general  conclusion  we  have  stated 
above,  and  have  led  to  its  general  adop- 
tion by  practical  operators.  Ohio  Oil 
Co.  v.  Kelley,  9  Ohio  Cir.  Ct.  Rep.  511, 
6  Ohio  Cir.  Dec.  470  (1895);  Wetten- 
gel  v.  Gornelly,  160  Pa.  St.  559,  18  Mor. 
Min.  Rep.  93,  28  Atl.  934,  40  Am.  St. 
Rep.  733    (1894). 

And  the  courts  will  take  judicial  no- 
tice of  these  characteristics,  and  will 
presume  them  known  to  the  parties  en- 
tering into  a  gas  or  oil  lease,  and  that 
they  contracted  with  reference  thereto. 
Ohio  Oil  Co.  v.  Kelley,  9  Ohio  Cir.  Ct. 
Rep.  511,  6  Ohio  Cir.  Dec.  470  (1895). 


1907] 


Bellevue  Gas  &  Oil  Co.  v.  Pennell. 


401 


Belleville  Township,  Chautauqua  County,  State  of  Kansas,  on  the  waters 
of  Hickory  Creek.  Second  party  shall  have  use  of  sufficient  oil,  water 
and  gas  free  to  run  all  necessary  machinery  for  operation  of  said  lease 
and  the  right  to  lay  pipe  lines  for  water  and  gas  on  and  across  said 
premises;  also  the  right  to  remove  any  machinery  or  fixtures  placed  on 
the  premises  by,  *  *  *  and  may  at  any  time  surrender  this  lease 
and  be  released  from  all  liabilities  thereunder  upon  payment  of  ten  dol- 
lars.   All  conditions  and  covenants  herein  shall  extend  to  the  heirs,  suc- 


The  nature  of  oil  and  gas,  the  pressure 
of  the  superincumbent  rocks,  and  the 
vagrant  habit  of  both  fluids  under  the 
influence  of  this  pressure,  must  enter 
into  the  contemplation  of  both  parties 
to  an  oil  lease.  Gadbury  v.  Ohio  &  In- 
diana C.  N.  &  I.  Gas  Co.,  162  Ind.  9, 
22  Mor.  Min.  Rep.  680,  67  N.  E.  259,  62 
L.  R.  A.  895  (1903)  ;  Kleppner  v.  Lemon, 
176  Pa.  St.  502,  18  Mor.  Min.  Rep.  404, 
35  Atl.  109   (1896). 

An  oil  lease  drawn  by  an  ignorant 
person  at  a  time  when  the  nature  of  the 
mineral  was  but  little  known  must  be 
construed  with  reference  to  the  knowl- 
edge of  the  parties  and  the  whole  coun- 
try as  to  the  subject-matter  in  an  at- 
tempt to  ascertain  the  real  intention  of 
the  parties,  and  especially  is  this  true 
where  a  man  acts  as  his  own  scrivener 
and  uses  legal  terms  without  a  knowl- 
edge of  their  true  or  precise  legal  import. 
French  v.  Brewer,  3  Wall.  Jr.  346,  11 
Mor.  Min.  Rep.  108,  Fed.  Cas.  No.  5,096 
(1861). 

In  construing  a  mining  lease  in  order 
to  determine  what  the  parties  meant  by 
the  words  employed,  the  situation  of  the 
parties  and  the  facts  and  circumstances 
surrounding  the  transaction  at  the  time 
of  the  execution  of  the  contract,  as  also 
its  subject-matter  and  the  object  of  the 
parties  in  making  it,  may  be  taken  into 
consideration.  St.  Louis  &  Denver  L.  & 
M.  Co.  v.  Tierney,  5  Colo.  582,  2  Mor. 
Min.  Rep.  381  (1881)  ;  Colorado  Fuel  & 
Iron  Co.  v.  Pryor,  25  Colo.  540,  19  Mor. 
Min.  Eep.  544,  57  Pac.  51    (1898). 

Oil  leases  must  be  construed  with  ref- 
erence   to   the   known   characteristics   of 


the  business.  Gadbury  v.  Ohio  &  In- 
diana C.  N.  &  I.  Gas  Co.,  162  Ind.  9, 
22  Mor.  Min.  Rep.  680,  67  N.  E.  259, 
62  L.  R.  A.  895   (1903). 

Gas  and  oil  contracts  must  be  con- 
strued with  reference  to  the  surrounding 
circumstances  and  the  objects  to  be  at- 
tained. Pittsburg-Columbian  Oil  &  Gas 
Co.  v.  Broyles  (Ind.  App.),  91  N.  E. 
754    (1910). 

The  whole  instrument,  the  situation  of 
the  parties,  and  the  subject-matter  will 
all  be  considered  together  in  construing 
a  gas  or  oil  lease.  Bellevue  Gas  &  Oil 
Co.  v.  Pennell,  p.  ,  this  volume. 

It  would  not  only  be  unjust,  but  con- 
trary to  the  well-settled  rules  of  con- 
struction, to  dispose  of  a  case  involving 
a  mining  lease  upon  any  narrow  or  tech- 
nical view  based  upon  any  particular 
word  or  clause  in  the  lease.  The  instru- 
ment should  be  examined  as  a  whole  in 
order  to  arrive  at  a  conclusion  in  entire 
accord  with  the  intention  of  the  parties 
making  it,  in  harmony  with  the  sur- 
rounding circumstances  then  existing  and 
consistent  with  each  and  all  of  the  pro- 
visions of  the  instrument  itself.  Harlow 
v.  Lake  Superior  Iron  Co.,  36  Mich.  105, 
9  Mor.  Min.  Rep.  47   (1877). 

Where  a  lease  is  made  for  a  certain 
term,  "and  so  long  as  gas  or  oil  are  pro- 
duced in  paying  quantities,"  the  term  is 
not  fixed,  but  depends  on  the  true  intent 
of  the  parties.  Herrington  v.  Wood,  6 
Ohio  Cir.  Ct.  Rep.  326,  3  Ohio  Cir.  Dec. 
475    (1892). 

It  is  the  intention  of  the  parties  which 
constitutes  a  transaction  a  lease,  and  not 
the  form  in  which  the  instrument  runs; 


402 


Water  and  Mineral  Cases. 


[Kansas 


cessors  or  assigns  of  the  parties  thereto.  All  erasures  and  interlinea- 
tions made  before  signing.  In  witness  whereof,  we,  the  said  parties  of 
the  first  and  second  parts,  have  hereunto  set  our  hands  the  day  and  year 
first  above  written." 

Afterwards,  a  gas  well  was  completed  within  the  time  limited  by  the 
lease,  and  gas  was  piped  therefrom  to  the  home  of  the  lessor,  who  used 
gas  therefrom  for  domestic  purposes  prior  to,  and  since,  August  13,  1904. 
On  August  13,  1904,  plaintiff  in  error  paid  in  cash  the  $100  stipulated  in 


no  matter  if  the  form  be  that  of  a  li- 
cense, covenant  or  agreement,  it  may  in 
legal  effect  amount  to  a  lease  as  ef- 
fectually as  if  the  most  technical  terms 
were  made  use  of  for  that  purpose. 
Watson  v.  O'Hern,  6  Watts  (Pa.)  362, 
8  Mor.  Min.  Rep.  333    (1837). 

Undoubtedly  the  court  will  construct 
a  warranty  or  other  contract  where  none 
is  in  terms  expressed  by  the  parties,  if 
common  sense  of  justice  requires  it  and 
it  is  essential  to  complete  the  definition 
of  the  relation  plainly  intended  to  be 
established  between  the  parties,  and  its 
terms  can  be  clearly  deduced  from  the 
instrument  and  from  the  nature  of  the 
transaction.  Harlan  v.  The  Lehigh  Coal 
&  N.  Co.,  35  Pa.  St.  2S7,  8  Mor.  Min. 
Rep.  496   (1860). 

Oil  lease  must  be  construed  with  ref- 
erence to  the  known  character  of  the 
oil  business  and  the  evident  intention 
of  the  parties.  McNish  v.  Stone  ( Pa. ) , 
17  Mor.  Min.  Rep.  22   (1879). 

A  well-settled  principle  of  law  is  that 
a  contract  shall  be  construed  as  a  whole, 
and  in  the  light  of  the  purposes  and 
objects  for  the  accomplishment  of  which 
it  was  made.  Oil  leases  are  no  excep- 
tion to  the  rule,  and,  as  the  subject- 
matter  of  the  lease  is  peculiar  in  its  na- 
ture, the  courts  have  given  this  principle 
great  latitude  in  their  construction. 
Parish  Fork  Oil  Co.  v.  Bridgewater  Gas 
Co.,  51  W.  Va.  583,  22  Mor.  Min.  Rep. 
145,  42  S.  E.  655,  59  L.  R.  A.  566 
(1902). 

Surrounding  circumstances  and  the 
circumstances  of  parties  executing  the 
lease  will  be  looked   into.     Wheatley  v. 


Westminster  Brymbo  Coal  Co.,  L.  R.  9 
Eq.  (Eng.)  538,  8  -Mor.  Min.  Rep.  553 
(1869);  Sobey  v.  Thomas,  39  Wis.  317, 
4  Mor.  Min.  Rep.  359    (1876). 

The  phrase  in  oil  leases  "found  or 
produced  in  paying  quantities"  means 
paying  quantities  to  the  lessee  or  op- 
erator. If  oil  has  not  been  found  and 
the  prospects  are  not  such  that  the  lessee 
is  willing  to  incur  the  expense  of  a  well, 
the  stipulated  condition  for  the  termina- 
tion of  the  lease  has  occurred;  so  also 
if  oil  has  been  found,  but  no  longer  pays 
the  expense  of  production.  It  is  for  the 
judgment  of  the  operator  and  not  the 
lessor,  when  exercised  in  good  faith,  to 
say  whether  a  sufficient  profit  to  continutr 
operation  is  realized.  Young  v.  Forest 
Oil  Co.,  194  Pa.  St.  243,  20  Mor.  Min. 
Eep.  345,  45  Atl.  121,  30  Pittsburg  L. 
J.    (N.    S.)    221    (1899). 

A  lease  for  "the  term  of  three  years, 
or  as  much  longer  as  gas  or  oil  is  found 
in  paying  quantities"  is  a  lease  for  three 
years  only  unless  gas  or  oil  is  found  in 
paying  quantities  before  the  expiration 
of  that  time.  Shellar  v.  Shivers,  171 
Pa.  St.  569,  18  Mor.  Min.  Rep.  260,  33 
Atl.   95    (1895). 

VI.   Real     Consideration     Considered. 

In  determining  whether  a  condition  is 
to  be  applied,  it  is  important  to  note 
that  the  substantial  consideration  which 
moves  a  grantor  to  execute  such  a  grant 
is  the  hope  of  profit  or  royalties  if  oil  or 
gas  is  discovered,  and  even  if  the  grantee 
had  paid  one  dollar,  a  technically  valu- 
able consideration,  the  lease  would  be 
construed  with  the  fact  in  view  that  a 


1907] 


Bellevue  Gas  &  Oil  Co.  v.  Pennell. 


403 


the  lease  as  the  annual  rent  for  a  gas  well.  On  August  13,  1905,  de- 
fendant presented  to  the  plaintiff,  as  payment  of  the  rent  for  the  year  just 
expired,  an  account  for  gas  used  by  him,  amounting  to  $97,  together  with 
$3  cash,  which  was  refused  by  the  plaintiff,  and  this  action  was  com- 
menced to  recover  said  rent.  The  case  was  submitted  to  the  court  upon 
an  agreed  statement  of  facts,  which,  so  far  as  material,  reads :  "Agreed 
Statement  of  Facts.     It  is  admitted  that  the  well  was  drilled  within  the 


more  substantial  reason  or  reasons 
prompted  the  making  of  the  grant.  Gad- 
bury  v.  Ohio  &  Indiana  C.  N.  &  I.  Gas 
Co.,  162  Ind.  9,  22  Mor.  Min.  Rep.  680, 
67  N.  E.  259,  62  L.  R.  A.  895  (1903)  ; 
Huggins  v.  Daley,  99  Fed.  606,  20  Mor. 
Min.  Rep.  377,  40  C.  C.  A.  12,  49  L.  R.  A. 
320  (1900)  ;  Federal  Oil  Co.  v.  Western 
Oil  Co.,  112  Fed.  373,  22  Mor.  Min. 
Rep.    25     (1902). 

VII.    Nature    of    Lessee's    Title. 

A.    Inchoate — No    Estate    Vests    until 
Mineral    Found. 

Under  a  gas  and  oil  lease  the  title  of 
the  lessee  is  inchoate,  and  for  pur- 
poses of  exploration  only.  Florence  Oil 
&  R.  Co.  v.  Oman,  19  Colo.  App.  79,  73 
Pac.    628     (1903). 

Oil  and  gas  are  not  subject  to  abso- 
lute ownership  until  found  and  reduced 
to  possession,  and  therefore  a  grant  of 
oil  and  gas  in  certain  land  passes  no 
title  until  it  is  actually  found.  Poe  v. 
Ulrey,  233  111.  56,  84  N.  E.  46   (1908). 

A  lease  to  explore  for  oil  and  gas,  and 
if  found,  to  produce  them,  gives  no  title 
to  the  oil  or  gas  until  found.  Gillespie 
v.  Fulton  Oil  and  Gas  Co.,  239  111.  326, 
88  N.  E.  192  (1909)  ;  Eaton  v.  Alleghe- 
ny Gas  Co.,  122  N.  Y.  416,  25  N.  E. 
981  (1890);  Conklin  v.  Krandusky,  127 
App.  Div.  761,  112  N.  Y.  Supp.  13 
(1908). 

A  gas  and  oil  lease  for  one  year,  and 
so  long  thereafter  as  oil  or  gas  shall  be 
produced  in  paying  quantities,  expires 
at  the  expiration  of  the  first  year  unless 
gas  has  been  so  found.  Chaney  v.  Ohio 
&  I.  Oil  Co.,  32  Ind.  App.  193,  69  N.  E, 
477   (1904). 


A  lessee  under  a  gas  and  oil  lease 
granting  the  right  to  explore,  develop, 
etc.,  acquires  no  title  until  the  gas  or 
oil  is  actually  discovered  and  severed, 
so  as  to  become  personal  property.  Kan- 
sas Natural  Gas  Co.  v.  Board  of  Com'rs 
of  Neosho  County,  75  Kan.  335,  89  Pac. 
750    (1907). 

No  title  to  the  oil  vests  in  the  lessee 
until  it  has  been  taken  from  the  ground 
and  reduced  to  possession.  Wiagner  v. 
Mallory,  169  N.  Y.  501,  22  Mor.  Min. 
Rep.  42,  62  N.  E.  584,  affirming  58  N.  Y. 
Supp.  526  (1902);  Shepherd  v.  McCal- 
mont  Oil  Co.,  38  Hun  (N.  Y.)  37 
(1885). 

There  can  be  no  property  in  rock  or 
mineral  oil,  and  the  title  thereto  cannot 
be  devested  or  acquired  until  the  mineral 
has  been  discovered  and  taken  from  the 
earth.  Funk  v.  Haldeman,  53  Pa.  St.  229, 
7  Mor.  Min.  Rep.  203  (1866)  ;  Appeal  of 
Thompson,  101  Pa.  St.  225  (1882); 
Duffield  v.  Hue,  136  Pa.  St.  602,  20  Atl. 
526  (1890);  Venture  Oil  Co.  v.  Fretts, 
152  Pa.  St.  451,  17  Mor.  Min.  Rep.  543, 
25  Atl.  732  (1893);  Plummer  v.  Iron 
Co.,  160  Pa.  St.  483,  28  Atl.  853   (1894). 

A  lease  for  the  purpose  of  operating 
oil  and  gas  for  the  period  of  five  years 
and  so  much  longer  as  oil  or  gas  is  found 
in  paying  quantities  on  no  other  con- 
sideration than  prospective  oil  royalty 
and  gas  rental,  vests  no  present  title 
in  the  lessee  except  the  mere  right  of 
exploration;  but  the  title  thereto,  both 
as  to  the  period  of  five  years  and  the 
time  thereafter,  remains  inchoate,  contin- 
gent on  the  finding,  under  the  explora- 
tions provided  for  in  such  lease,  of  oil  and 
gas  in  paying  quantities.     Steelsmith  v. 


404 


Water  and  Mineral  Cases. 


[Kansas 


time  prescribed  in  the  lease,  and  that  on  the  13th  day  of  August,  1905, 
$100  was  due  to  the  plaintiff  for  rental  for  the  gas  well.  It  is  also  ad- 
mitted that  on  the  13th  day  of  August,  1905,  defendant  presented  to  the 
plaintiff  the  itemized  statement,  a  copy  of  which  is  attached  to  its  an- 
swer, and  $3  in  cash,  which  defendant  offered  in  payment  for  said  $100, 
which  was  refused  by  the  plaintiff.  It  is  also  admitted  that  on  August 
12,  1904,  defendant,  through  its  agent,  J.  B.  Swan,  paid  $100  as  rental 
on  said  gas  well  to  the  plaintiff,  and  that  plaintiff  would  testify  that, 


Gartlan,  45  W.  Va.  27,  19  Mor.  Min. 
Rep.  315,  29  S.  E.  978,  44  L.  R.  A.  107 
(1898). 

Until  oil  is  discovered  in  paying  quan- 
tities, the  lessee  acquires  no  title  under 
an  oil  lease.  Parish  Fork  Oil  Co.  v. 
Eridgewater  Gas  Co.,  51  W.  Va.  583,  22 
Mor.  Min.  Rep.  145,  42  S.  E.  655,  59  L. 
R.  A.  566     (1902). 

Title  under  a  lease  only  for  production 
of  oil  and  gas  is  inchoate  and  contingent 
and  for  purposes  of  search  only  until  oil 
or  gas  is  found.  If  not  found,  no  estate 
vests  in  the  lessee  and  his  right,  whatever 
it  is,  ends  when  the  unsuccessful  search 
is  abandoned.  If  found,  then  the  right 
to  produce  becomes  a  vested  right  upon 
the  terms  of  the  lease.  Lowther  Oil 
Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va. 
501,  22  Mor.  Min.  Rep.  656,  44  S.  E. 
433,  97  Am.  St.  Rep.  1027,  sub  nom.  Urp- 
man  v.  Lowther  Oil  Co.,  53  W.  Va.  501, 
22  Mor.  Min.  Rep.  656,  44  S.  E.  433 
(1903). 

An  oil  and  gaa  lease  giving  the  lessee 
the  right,  for  the  period  of  ten  years 
to  explore  for  oil  and  gas,  and  provid- 
ing that  if  a  well  is  not  completed  on 
the  leased  premises  within  three  months 
from  the  date  of  the  lease,  the  lessee 
shall  pay  to  the  lessor  in  advance  a 
quarterly  cash  rental  for  each  additional 
three  months  the  completion  of  a  well 
is  delayed,  is  an  executory  contract,  and 
vests  no  title  in  the  lessee  to  the  oil 
and  gas  in  place.  Smith  v.  Root  (W. 
Va.),  66  S.  E.  1005    (1910). 

After  discovery  of  oil  in  paying  quan- 
tities it  is  held  that  the  title  does  vest 
in  the  lessee,  but  there  is  no  case  which 


goes  so  far  as  to  announce  that  after 
mere  discovery  of  oil  the  lessee,  upon  the 
assumption  of  a  vested  interest  or  title, 
may  cease  operation,  refuse  to  develop 
the  property,  tie  up  the  oil  by  his  lease, 
and  simply  hold  it  for  speculative  pur- 
poses or  to  await  his  own  pleasure  as 
to  the  time  of  development.  Parish  Fork 
Oil  Co.  v.  Bridgewater  Gas  Co.,  51  W. 
Va.  583,  22  Mor.  Min.  Rep.  145,  42  S.  E. 
655,  59  L.  R.  A.  566   (1902). 

As  to  lease  being  a  sale  of  the  mineral 
in  place,  see  post  VII,  E,  this  note. 

B.   Vested   Right   when    Found. 

If  oil  is  found,  then  the  right  to  pro- 
duce becomes  a  vested  right,  and  the 
lessee  will  be  protected  in  exercising  it 
in  accordance  with  the  terms  and  con- 
ditions of  the  contract.  Crawford  v. 
Ritchey,  43  W.  Va.  252,  27  S.  E.  220 
(1897). 

The  discovery  of  oil  or  gas,  unless  there 
is  something  to  the  contrary  in  the  lease, 
creates  a  vested  estate  in  the  lessee  of  an 
exclusive  right  to  produce  the  oil  or 
gas  as  provided  in  the  lease.  Easton  Oil 
Co.  v.  Coulehan,  65  W.  Va.  531,  64  S.  E. 
836    (1909). 

Gas  or  oil  lease  does  not  carry  title 
to  those  minerals  even  after  a  paying 
well  has  revealed  them;  but  an  estate,  a 
right  of  value,  then  vests,  that  is,  a 
right  to  retain  possession  of  the  land 
for  operation  and  to  go  on  to  sever  the 
minerals  from  the  land,  converting  them 
into  personalty.  McGraw  Oil  &  Gaa 
Co.  v.  Kennedy,  65  W.  Va.  595,  54  S. 
E.  1027   (1909). 


1907] 


Bellevtje  Gas  &  Oil  Co.  v.  Pennell. 


405 


at  the  time  said  payment  was  made,  he  (the  plaintiff)  handed  said 
Swan  the  copy  of  said  oil  and  gas  lease,  which  Swan  read  before  mak- 
ing said  payment,  and,  if  Swan  was  present,  he  would  testify  that  he 
made  said  payment,  without  knowledge  of  the  terms  and  conditions  of 
this  lease  and  gave  a  check,  because  he  feared  that  unless  he  did  so  the 
lease  would  expire  the  next  day.  The  defendant  presented  no  bill  to 
the  plaintiff  for  the  gas  used  during  the  years  of  1903  and  1904." 


C.   Relation  of  Landlord  and  Tenant. 

Under  the  lease  giving  lessees  right  to 
go  upon  land  and  prospect  for  oil,  the 
relation  of  landlord  and  tenant  does  not 
arise  where  the  lessees  do  not  take  pos- 
session. Diamond  Plate  Glass  Co.  v. 
Curless,  22  Ind.  App.  346,  19  Mor.  Min. 
Rep.  682,  52  N.  E.  782    (1899). 

By  a  lease  granting  a  term  of  five  years 
or  so  long  as  oil  or  gas  should  be  found 
in  paying  quantities,  and  providing  that 
the  lessee  should  commence  operations 
■within  a  given  time  or  in  lieu  thereof 
pay  a  certain  amount  per  annum,  the 
relation  of  landlord  and  tenant  does  not 
exist,  and  in  the  absence  of  any  work 
by  the  lessee,  the  lease  could  be  ter- 
minated at  the  end  of  any  year  by  either 
of  the  parties.  Indiana  Natural  Gas  & 
Oil  Co.  v.  Pierce,  34  Ind.  App.  523,  68 
N.  E.  691    (1903). 

Under  lease  "for  the  purpose  and  with 
the  exclusive  right  of  drilling  and  op- 
erating for  petroleum  and  gas"  for  a 
certain  term,  where  gas  is  obtained  in 
sufficient  quantities  to  justify  its  mar- 
keting, the  relation  of  landlord  and  ten- 
ant was  established,  and  the  tenant  was 
under  obligation  to  operate  for  the 
common  good  of  both  parties  and  pay  the 
rent  or  royalty  reserved.  lams  v.  Car- 
negie Natural  Gas  Co.,  194  Pa.  St.  72, 
20  Mor.  Min.  Rep.  335,  45  Atl.  54  (1899). 

D.   When  a  Mere  Option. 

A  lease  granting  the  right  to  mine 
for  oil  and  gas,  but  not  requiring  the 
lessee  to  do  anything,  is  a  mere  option,, 
and  may  be  withdrawn  by  the  lessor  at 
any  time  before  the  lessee  has  taken  ac- 


tion under  it.  Cortelyou  v.  Barnsdall, 
236  111.   13S,  86  N.  E.  200    (1908). 

Under  a  provision  that  unless  the 
grantee  sinks  a  well  within  ninety  days, 
the  grant  should  be  null  and  void  unless 
the  grantee  paid  a  certain  amount,  held 
that  as  it  was  optional  with  the  grantee 
to  do  or  not  to  do  anything,  and  there 
was  no  obligation  upon  him  to  pay  any- 
thing where  no  well  was  put  down. 
Brooks  v.  Kunkle,  24  Ind.  App.  624,  20 
Mor.  Min.  Rep.  540,  57  N.  E.  260  (1900). 

An  oil  and  gas  lease  granting  right  to 
prospect,  but  not  obligating  lessee  to  do 
anything,  is  a  mere  option.  O'Neill  v. 
Risinger,  77  Kan.  63,  93  Pac.  340  (1908). 

An  oil  lease  imposing  no  obligation  on 
the  lessee  to  explore  and  discover  oil  or  to 
work  the  property  when  it  is  discovered 
is  a  mere  voluntary  option,  which  the 
lessor  can  withdraw  at  any  time  before 
its  acceptance.  Eclipse  Oil  Co.  v.  South 
Penn  Oil  Co.,  47  W.  Va.  84,  34  S.  E. 
923,  20  Mor.  Min.  Rep.  234. 

A  clause  in  a  lease  giving  the  lessee 
the  right  at  any  time  to  surrender  up 
the  lease  and  be  released  from  all  mon- 
eys due  and  covenants  unfulfilled,  ren- 
ders the  lease  invalid  at  least  until  some 
consideration  has  passed  from  the  lessee 
to  the  lessor.  Eclipse  Oil  Co.  v.  South 
Penn  Oil  Co.,  47  W.  Va.  84,  34  S.  E.  923, 
20  Mor.  Min.  Rep.  234. 

The  granting  of  a  new  lease  to  a  third 
party  is  a  declaration  by  the  owner  that 
he  considered  an  outstanding  lease  ter- 
minated. Shepherd  v.  McCalmont  Oil  Co., 
38  Hun  (N.  Y.)  37  (1885)  ;  Conkling  v. 
Krandusky,  127  App.  Div.  761,  112  N.  Y. 
Supp.   13    (1908). 


406 


Water  and  Mineral  Cases. 


[Kansas 


The  plaintiff  recovered,  and  the  defendant,  as  plaintiff  in  error,  brings 
the  case  here  for  review.    Affirmed. 

Joseph  P.  Rossiter — for  plaintiff  in  error. 

J.  R.  Charlton — for  defendant  in  error. 

GRAVES,  J.  (after  stating  the  facts  as  above).  The  only  con- 
troversy between  the  parties  arises  upon  the  proper  interpretation  to 
be  given  to  subdivision  6  of  the  lease,  which  reads :    "To  pipe  gas  to  the 


Where  the  lessor  has  a  right  to  ter- 
minate a  lease  at  any  time,  he  effectually 
does  so  by  making  a  new  lease,  and  giv- 
ing possession  to  another.  Eclipse  Oil 
Co.  v.  South  Penn  Oil  Co.,  47  W.  Va. 
84,  34  S.  E.  923,  20  Mor.  Min.  Rep.  234. 

E.   Sale  of  Oil    in    Place,   etc. 

Under  an  ordinary  oil  lease,  title  to 
the  oil  in  place  is  not  in  the  lessee. 
Backer  v.  Penn  Lubricating  Co.,  162  Fed. 
627,  89  C.  C.  A.  419  (1908). 

A  grant  to  the  oil  and  gas  passes  noth- 
ing which  can  be  subject  of  ejectment  or 
other  real  action.  It  is  a  grant  not  of 
the  oil  that  is  in  the  ground,  but  to 
such  part  thereof  as  the  grantee  may 
find.  Watford  Oil  &  Gas  Co.  v,  Shipman, 
233  111.  9,  84  N.  E.  53,  122  Am.  St.  Rep. 
144    (1908). 

An  ordinary  mining  lease  is  not  a 
sale  of  the  mineral  in  place  as  a  severed 
portion  of  the  land,  but  an  executory 
agreement  for  the  sale  of  an  amount  of 
the  mineral  to  be  determined  by  actual 
mining.  Genet  v.  President  of  Delaware 
&  H.  Canal  Co.,  136  N.  Y.  593,  32  N. 
E.  1078,  19  L.  R.  A.  127   (1893). 

Oil  in  place  is  a  mineral,  and  being  a 
mineral  is  a  part  of  the  realty.  An  oil 
lease  investing  the  lessee  with  the  right 
to  remove  all  the  oil  in  place  in  the 
premises  in  consideration  of  his  giving 
the  lessors  a  certain  per  centum  thereof, 
is,  in  legal  effect,  a  sale  of  a  portion  of 
the  land,  and  the  proceeds  represent  the 
respective  interests  of  the  lessors  in 
the  premises.     Timlin  v.  Brown,  158  Pa. 


St.  606,  28  Atl.  236  (1893)  ;  Blakely  v. 
Marshall,  174  Pa.  St.  425,  18  Mor.  Min. 
Rep.  350,  34  Atl.  564     (1896). 

The  distinction  expressed  in  Blakely 
v.  Marshall  (174  Pa.  St.  425,  18  Mor. 
Min.  Rep.  350,  34  Atl.  564),  and  other 
cases  is  criticized  if  not  overruled  in  a 
later  case,  where  the  court  say  "the 
expression  that  a  conveyance  of  coal  in 
place  even  by  a  lease  for  a  remote  term 
is  a  sale,  is  inaccurate  as  a  general  pro- 
position of  law  and  unfortunate  from  its 
tendency  to  mislead."  Demuston  v.  Had- 
dock, 200  Pa.  St.  426,  50  Atl.  197  (1901). 

Ordinarily  an  oil  lease  is  not  to  be 
viewed  as  a  conveyance  of  the  oil  in  the 
ground.  Its  purpose  is  to  confer  the 
right  to  exploit  the  ground  and  acquire 
title  to  the  oil  by  its  extraction  from  the 
ground.  The  subject-matter  is  the  pro- 
cess and  opportunity  of  extracting  the 
oil,  which,  when  produced,  undoubtedly 
becomes  property.  This  privilege  or 
right  is  clearly  the  subject  of  contract, 
as  much  so  as  the  right  to  mine  for 
minerals.  The  fact  that  oil  in  the  earth 
is  flowing  or  fugitive  in  its  nature  in- 
stead of  stationary  can  make  no  differ- 
ence. O'Neil  v.  Sun  Company  (Tex. 
Civ.  App.),  125  S.  W.  172    (1909). 

An  oil  lease  investing  the  lessee  with 
the  right  to  remove  all  the  oil  in  place 
in  the  premises  in  consideration  of  his 
giving  the  lessors  a  certain  per  cent, 
thereof  is  in  legal  effect  a  sale  of  a  por- 
tion of  the  land.  Williamson  v.  Jones,  39 
W.  Va.  231,  19  S.  E.  436,  25  L.  R.  A.  222 


1907] 


Bellevue  Gas  &  Oil  Co.  v.  Pennell. 


407 


house  for  domestic  purposes  as  soon  as  well  is  completed."  The  de- 
fendant in  error  insists  that  under  this  clause,  gas  is  to  be  delivered  at 
his  home  free,  and  therefore  the  account  presented  by  the  gas  company 
does  not  constitute  any  claim  against  him.  On  the  other  hand,  the  gas 
company  claims  that  the  word  "free"  is  not  used  in  this  clause,  and 
should  not  be  arbitrarily  read  into  it.  The  trial  court  decided  that,  tak- 
ing the  whole  instrument,  the  situation  of  the  parties,  and  the  subject- 
matter  of  the  contract  together,  it  was  apparent  that  the  parties  intended 
that  gas  should  be  furnished  without  charge.    It  will  be  observed  that  this 


(1894)  ;  Wilson  v.  Youst,  43  W.  Va.  826, 
28  S.  E.  781,  39  L.  R.  A.  292    (1897). 

The  lease  of  a  tract  of  land  for  oil  and 
gas  purposes  is  a  conditional,  contingent 
sale  of  the  oil  and  gas  in  place.  The  title 
is  inchoate,  and  dependent  on  the  find- 
ing of  the  oil  and  gas  by  the  purchaser* 
in  a  limited  number  of  days.  The  sale 
never  becomes  absolute  and  fully  con- 
summated until  the  conditions  thereof 
are  fulfilled  and  the  contingency  on 
which  consummation  depends  happens, 
and  if  they  fail  by  reason  of  the  default 
of  the  purchasers,  the  sale  is  at  an  end. 
Lawson  v.  Kirchner,  50  W.  Va.  344,  21 
Mor.  Min.  Rep.  683,  40  8.  E.  344  (1901). 

During  the  life  of  the  lease  the  lessee, 
has  such  an  interest  in  the  oil  and  gas 
in  place  that  he  can  prevent  any  other 
person,  even  the  owner  of  the  land,  from 
committing  waste  by  the  extraction  of 
such  oil  or  gas.  Lawson  v.  Kirchner,  50 
W.  Va.  344,  21  Mor.  Min.  Rep.  683,  40 
S.  E.  344    (1901). 

What  the  lessee  acquires  by  discovery 
is  the  right  to  produce  and  take  the  oil, 
paying  out  of  it  the  stipulated  royalty 
and  not  title  to  the  oil  as  it  remains 
in  the  ground  without  production.  Par- 
ish Fork  Oil  Co.  v.  Bridgewater  Gas  Co., 
51  W.  Va.  5S3.  22  Mor.  Min.  Rep.  145, 
42   S.   E.    655    (1902). 

The  ordinary  oil  and  gas  lease  giving 
the  lessee  for  a  term  of  years  the  right 
to  mine  and  operate  for  oil  and  gas  is 
not  a  sale  of  the  oil  and  gas  in  place, 
and  the  lessee  has  no  vested  estate  there- 
in until  it  is  discovered;  but  when  found 


the  right  to  produce  becomes  a  vested 
right,  and  when  extracted,  the  title  vests 
in  the  lessee,  and  the  consideration  or 
royalty  paid  for  the  privilege  of  search 
and  production  is  rent  for  the  leased 
premises.  Headley  v.  Hoopengarner,  60 
W.  Va.  626,  55  S.  E.  744   (1906). 

While  an  oil  or  gas  lease  is  a  sale  of 
real  estate  so  far  as  the  lessors  are  con- 
cerned, it  is  only  of  such  part  thereof  as 
the  lessee  may  be  able  to  find  and  to  con- 
vert into  personalty.  Lawson  v.  Kir- 
chner, 50  W.  Va.  344,  21  Mor.  Min.  Rep. 
683,  40  S.  E.  344    (1901). 

As  to  title  being  inchoate  and  depend- 
ent on  discovery  of  mineral,  see  ante 
VIII,  A,  this  note. 

F.   Corporeal    or     Incorporeal 
Hereditament. 

Leases  of  coal,  stone,  and  other  like 
material  are  corporeal  hereditaments, 
constitute  an  essential  part  of  the  land 
itself,  and  are  capable  of  present  absolute 
grant,  while  oil  and  gas  are  of  a  fugitive 
and  volatile  nature,  a  grant  of  either 
of  which  creates  only  an  inchoate  right 
which  will  become  absolute  upon  its 
reduction  to  possession.  A  lease  to  mine 
for  oil  or  gas  is  a  mere  incorporeal 
right,  to  be  exercised  in  the  land  of 
another.  It  is  a  profit  a  prendre  which 
may  be  held  separate  and  apart  from 
the  possession  of  the  land  itself.  Fed- 
eral Oil  Co.  v.  Western  Oil  Co.,  112 
Fed.  373,  22  Mor.  Min.  Rep.  25    (1902). 

A  lease  of  land  for  a  certain  term  of 
years,  with  the  sole  and  exclusive  right 


408 


"Water  and  Mineral  Cases. 


[Kansas 


is  one  of  the  agreements  on  the  part  of  the  grantee  which  constitutes  the 
consideration  for  the  lease.  This  clause  expressly  limits  the  amount 
to  be  furnished  to  "domestic  purposes."  Why  this  limitation,  if  all  the 
gas  furnished  was  to  be  paid  for  at  its  market  value  ?  No  price  is  named 
in  this  clause,  or  anywhere  in  the  lease  for  the  gas  furnished.  This 
omission  seems  at  least  unusual,  if  it  was  intended  that  the  gas  should  be 
paid  for.  The  omission  of  the  gas  company  to  collect  or  demand  pay- 
ment for  gas  used  prior  to  August,  1904,  is  also  unusual,  if  payment 
therefor  was  expected.  We  are  unable  to  say  that  the  district  court 
erred  in  its  interpretation  of  this  clause. 
The  judgment  is  affirmed. 


to  mine  for  all  minerals,  rendering  a 
certain  portion  thereof  to  the  lessor, 
passes  a  corporeal  hereditament.  Chicago 
&  Allegheny  Oil  &  Min.  Co.  v.  United 
States  Petroleum  Co.,  57  Pa.  St.  83,  12 
Mor.  Min.  Rep.   570    (18G8). 

An  oil  lease  giving  right  to  drill  upon 
land,  and  to  the  oil  and  gas  recovered 
subject  to  certain  conditions,  creates  but 
an  incorporeal  hereditament.  Managhan 
v.  Mount,  36  Ind.  App.  188,  74  N.  E.  579 
(1905). 

The  right  to  enter  upon  land  and  bore 
for  oil  is  but  an  incorporeal  heredita- 
ment, and  not  sufficient  to  support  eject- 
ment. Union  Petroleum  Co.  v.  Bliven 
Petroleum  Co.,  72  Pa.  St.  173,  3  Mor. 
Min.  Rep.   107    (1872). 

G.  Freehold. 
The  right  to  go  upon  land  and  occupy 
it  for  the  purpose  of  prospecting,  if  of 
unlimited  duration,  is  a  freehold  interest, 
but  such  interest,  being  vested  for  a 
specific  purpose,  becomes  extinct  when 
the  purpose  is  accomplished  or  the  work 
is  abandoned.  Watford  Oil  &  Gas  Co.  v. 
Shipman,  233  111.  9,  84  N.  E.  53,  122 
Am.  St.  Rep.   144    (1908). 


H.  Chattel   Real. 

Under  a  lease  granting  exclusive  right 
to  enter  on  premises,  bore  wells,  and 
do  whatever  might  be  necessary  for  the 
production  of  oil,  paying  a  portion 
thereof  to  the  lessor  if  oil  be  found,  vests 
no  present  title  to  the  oil  in  place.  It 
leaves  the  title  in  the  landlord  until  it 
is  brought  to  the  surface.  The  right 
vested  in  the  lessee  is  an  estate  for  years 
so  far  as  necessary  for  the  purpose  of 
taking  oil  from  the  land,  and  it  carries 
with  it  the  right  to  extract  the  oil  and 
remove  it  from  the  premises.  This  right 
constitutes  for  the  term  prescribed  a 
servitude  on  the  land,  and  a  chattel  real 
at  common  law.  Graciosa  Oil  Co.  v.  Santa 
Barbara  County,  155  Cal.  140,  99  Pac. 
4S3,   20  L.  R.  A.    (N.   S.)    211    (1909). 

As  to  exploration,  development,  and 
operation  required  under  gas  or  oil  lease, 
see  note  to  Eclipse  Oil  Co.  v.  South  Penn 
Oil  Co.,  47  W.  Va.  84,  34  S.  E.  923,  20 
Mor.    Min.    Rep.    234. 

As  to  effect  of  nonexistence  or  exhaus- 
tion of  mineral  on  oil  or  gas  lease,  see 
VII,  note  to  Bannan  v.  Graeff,  post,  p. 
553. 


1911] 


Zeiger  v.  Dowdy  et  al. 


409 


ZEIGER  v.  DOWDY  et  al. 

[Supreme    Court   of   Arizona,    March    25,    1911.] 
—  Ariz.  — ,  114  Pac.  565. 

1.  Public  Domain — Occupant. 

An  occupant  of  the  public  lands,  in  the  absence  of  any  showing  under  townsite 
or  other  laws,  is  a  licensee,  subject  to  the  rights  of  one  making  a  valid  entry 
thereon. 

2.  Mining  Claim — Discovery. 

Discovery  of  mineral  is  essential  to  the  validity  of  a  mining  claim. 

3.  Same — Relocation. 

One  claiming  under  a  relocation  is  precluded  from  denying  the  validity  of  the 
prior  location. 

4.  Same — Occupant. 

One  who  has  abandoned  an  attempted  relocation  and  claims  the  land  merely  as  an 
occupant  is  not  estopped  to  deny  the  validity  of  the  prior  location. 

Appeal  from  the  District  Court,  Yavapai  County,  Doe,  Justice. 

Action  to  quiet  title  by  J.  T.  Dowdy  and  another  against  Edward 
Zeiger.  Judgment  for  plaintiffs.  Defendant  appeals.  Reversed  and  re- 
manded. 


For  appellant — Norris  &  Smith. 

For  appellees — Robert  E.  Morrison. 

CAMPBELL,  J.  Appellees  brought  this  action  to  quiet  title  to 
a  placer  mining  claim,  the  complaint  alleging  a  discovery,  by  the  plaintiffs, 
of  mineral  upon  the  unoccupied  mineral  lands  of  the  United  States  and 
the  performing  of  the  various  acts  of  location  required  by  law,  and  that 
the  defendant  claimed  some  interest  therein  by  virtue  of  an  attempted 
relocation  of  the  ground.  The  defendant,  appellant  here,  answering,  de- 
nied that  plaintiffs  made  any  discovery  of  mineral,  denied  that  the  ground 
was  mineral  in  character,  denied  that  he  claimed  any  interest  therein 
by  virtue  of  any  attempted  location,  and  alleged  that  he  claimed  a  portion 
of  the  ground  in  controversy  by  reason  of  the  fact  that  for  more  than  ten 
years  last  past  there  has  been  a  settlement,  village,  or  town  upon  the 


NOTE. 

Effect  of    subsequent  town-site  patent 


upon  valid  mining  location,  see  note  to 
Golden  v.  Murphy,  vol.  3,  this  series. 


410  Watek  and  Mineral  Cases.  [Arizona 

ground  attempted  to  be  located  by  the  plaintiffs  as  a  mining  claim;  that 
many  houses  for  residence  and  business  purposes  have  been  erected  there- 
on, some  of  which  defendant  purchased  and  is  in  possession  of,  and  upon 
which  he  and  his  grantors  have  paid  taxes  for  a  number  of  years ;  and 
that  the  ground  was  not  unoccupied  at  the  time  plaintiffs  attempted  to 
make  their  location.  At  the  trial  the  plaintiffs  produced  testimony  tend- 
ing to  establish  the  character  of  the  ground  as  placer  mineral  ground,  the 
discovery  of  mineral  thereon,  and  the  performance  of  the  various  acts 
of  location.  A  location  notice,  filed  by  the  defendant,  whereby  he  sought 
to  relocate  the  ground  covered  by  the  plaintiffs'  location,  because  of  for- 
feiture incurred  by  failure  to  do  the  annual  assessment  work  during  the 
year  1908,  was  also  put  in  evidence.  An  objection  to  any  testimony  on 
the  part  of  the  defendant  was  sustained,  and  judgment  entered  for  plain- 
tiffs, from  which  and  the  order  denying  a  new  trial  this  appeal  is  prose- 
cuted. 

In  the  absence  of  any  showing  that  he  is  seeking  to  connect  him- 
self with  the  government  title  under  the  town-site  or  other  public  land 
laws  of  the  United  States,  we  do  not  think  appellant  can  claim  any  rights 
other  than  those  of  an  occupant  of  the  public  lands.  His  rights  are  those 
of  a  licensee  of  the  government,  and  he  must  give  way  to  one  who  makes 
a  valid  entry  of  the  land  under  the  public  land  laws.  But,  until  a  valid 
entry  is  made,  only  the  government  may  complain  of  his  occupancy.  The 
plaintiffs  may  have  their  title  quieted  only  if  they  have  one. 

It  is  essential  to  the  validity  of  a  mining  claim  that  the  ground 
be  mineral  in  character,  and  that  a  discovery  of  mineral  within  the  con- 
fines of  the  claim  be  made.  Sections  2329.  2330,  Rev.  St.  U.  S.  (U.  S. 
Comp.  St.  1901,  p.  1432).  Chrisman  v.  Miller,  197  U.  S.  313,  25  Sup. 
Ct.  .468,  49  L.  Ed.  77c. 

The  defendant  offered  evidence  tending  to  prove  that  the  ground 
is  nonmineral ;  that  no  discovery  was  made ;  that  no  location  notice  was 
posted  by  plaintiffs  within  the  boundaries  of  their  claim ;  and  that  his 
grantor  was  in  actual  possession  at  the  time  plaintiff  attempted  to  make 
their  location.  All  of  this  evidence  should  have  been  received  unless 
it  may  be  said,  as  contended  by  appellees,  that  the  defendant  is  precluded 
from  denying  the  validity  of  the  location  by  reason  of  having  attempted 
a  location.  That  he  would  be  held  to  have  impliedly  admitted  the  validity 
of  plaintiffs'  location,  were  he  claiming  under  the  relocation,  is  undoubt- 
edly true.  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  Ed.  735 ;  Providence 
Gold  Mining  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641 ;  Zerres  v.  Vanina, 
150  Fed.  564,  80  C.  C.  A.  366. 

These  authorities,  however,  go  no  further  than  to  hold  that  the 
relocator  may  not  show  the  invalidity  of  the  original  location  where  he 


1911]  Zeiger  v.  Dowdy  et  al.  411 

claims  under  his  relocation ;  and  we  are  unwilling  to  enlarge  the  doctrine 
to  the  extent  of  holding  that  one  who  has  attempted  a  relocation,  but 
who  has  abandoned  it  and  expressly  renounced  any  claim  under  it,  but 
who  nevertheless  claims  an  interest  in  some  other  right  which  would  en- 
title him  to  be  heard  had  he  never  attempted  such  relocation,  may  not 
show  that  the  original  locator  never  made  a  location,  but  is  in  fact  perpe- 
trating a  fraud  upon  the  government.  It  is  true  that  he  is  upon  the 
public  lands  as  a  mere  licensee,  but  his  rights  in  that  respect  are  at 
least  equal  to  those  of  the  plaintiffs,  if  the  latter's  claim  as  mineral 
locators  is  invalid.  "The  right  to  the  possession  comes  only  from  a  valid 
location.  Consequently,  if  there  is  no  location,  there  can  be  no  posses- 
sion under  it."  Belk  v.  Meagher,  supra.  Appellees  appear  to  rely  upon 
the  case  of  Veronda  &  Ricoletto  v.  Dowdy  (Ariz.),  108  Pac.  482.  We 
there  decided  that  a  trespasser  making  no  claim  to  the  land  under  any  of 
the  public  land  laws  could  not  be  heard  to  urge,  against  one  who  had  made 
a  discovery  upon  mineral  land  and  performed  the  acts  of  location,  that  the 
land  was  more  useful  for  purposes  other  than  mining.  See  Haws  v. 
Victoria  Copper  Mining  Co.,  160  U.  S.  303,  16  Sup.  Ct.  282,  40  L.  Ed. 
436.  We  do  not  perceive  that  anything  we  there  said  is  authority  for 
the  position  assumed  by  appellees  in  this  case. 

For  the  reasons  indicated,  the  judgment  of  the  district  court  is  reversed, 
and  the  cause  remanded  for  a  new  trial. 

KENT,  C.  J.,  and  DOAN  and  LEWIS,  JJ.,  concur. 


412 


Water  and  Mineral  Cases. 


[Oregon 


GRANT'S  PASS  BANKING  &  TRUST  CO.  v.  ENTERPRISE  MINING  CO.; 
CONDOR  WATER  &  POWER  CO.  v.  ENTERPRISE  MINING  CO.  et  al. 

[Supreme  Court  of  Oregon,  March  7,  1911.] 

—  Or.  — ,  113  Pac.  858. 

1.  Mining  Lien — Supplies  Defined. 

The  word  "supplies,"  as  used  in  the  mining  lien  statute,  is  defined  as  "any 
substance  the  use  of  which  might  reasonably  tend  to  the  working  or  contribute  to 
the  development  of  a  mine." 

2.  Same — Electricity. 

Electricity  is  a  supply  within  the  meaning  of  the  mining  lien  statute 

3.  Same — Limitations. 

The  right  to  file  a  proper  lien  continues  until  the  expiration  of  the  time  allowed 
to  file  an  original  lien,  notwithstanding  prior  unsuccessful  attempts. 

4.  Same — Priority  over   Mortgage. 

A  lien  for  materials  furnished  prior  to  a  mortgage  takes  precedence  over  the  latter 
although  not  filed  until  after  the  institution  of  proceedings  to  foreclose  the  mort- 
gage. 

Appeal  from  the  Circuit  Court,  Jackson  County;  H.  K.  Hanna,  Judge. 

Consolidated  actions  to  foreclose  a  mortgage  and  to  establish  a  min- 
ing lien  by  the  Grant's  Pass  Banking  &  Trust  Company  against  the  En- 
terprise Mining  Company,  and  by  the  Condor  Water  &  Power  Company 
against  the  Enterprise  Mining  Company  and  the  Grant's  Pass  Banking 
&  Trust  Company.  Decree  foreclosing  the  mortgage  subject  to  the  min- 
ing lien.    The  Banking  &  Trust  Company  appeals.    Affirmed. 

For  appellant — O.  S.  Blanchard  and  H.  D.  Norton. 

For  respondent — A.  E.  Reames  and  R.  G.  Smith. 

This  is  a  controversy  between  creditors  as  to  the  validity  and  priority 
of  a  lien.  A  suit  was  commenced  March  12,  1907,  by  the  Grant's  Pass 
Banking  &  Trust  Company  to  foreclose  a  mortgage  of  certain  mining 
property  executed  to  it  October  19,  1906,  by  the  Enterprise  Mining  Com- 
pany to  secure  the  payment  of  $6,000.  The  Condor  Water  &  Power 
Company  was  made  a  party  defendant;  the  complaint  alleging  that  it 
claimed  some  interest  in  the  premises  inferior  to  plaintiff's  mortgage. 


NOTE. 

As  to    services    for    which    mechanics' 
liens  are  allowed  on  mining  claims,  see 


note    to    Gray    v.    New    Mexico    Pumice 
Stone  Company,  ante,  p.  157. 


1911]  Banking  &  Trust  Co.  v.  Mining  Co.  413 

That  defendant,  alone  answering,  denied  that  its  claim  was  subordinate 
to  that  of  the  plaintiff,  set  forth  facts  tending  to  show  that  it  had  a  prior 
lien  on  the  real  property,  and  thereupon  commenced  a  suit  against  the 
Enterprise  Mining  Company  and  the  Grant's  Pass  Banking  &  Trust  Com- 
pany, averring  that,  pursuant  to  the  terms  of  a  written  contract  entered 
into  with  the  former,  it  had  supplied  between  October  31,  1905,  and 
March  1,  1907,  certain  material  and  furnished  electricity  for  illumination 
and  for  the  operation  of  a  quartz  mill  on  the  premises  amounting  to 
$3,570.28,  on  account  of  which  $1,527.20  had  been  paid,  leaving  due 
$2,043.08,  to  secure  the  payment  of  which  a  lien  on  the  land,  building, 
machinery,  etc.,  was  filed  March  20,  1907.  Issues  having  been  joined, 
the  suits  were  consolidated  and  tried,  resulting  in  a  decree  foreclosing 
the  mortgage  and  the  lien,  but  making  the  latter  superior,  and  plaintiff 
appeals. 

MOORE,  Judge  (after  stating  the  facts  as  above).  The  statute  giving  a 
lien  on  mines,  so  far  as  involved  herein,  is  as  follows :  "Any  person  who 
shall  furnish  any  provisions,  materials  or  supplies  for  the  working  or 
development  of  any  *  *  *  mine  *  *  *  shall  have  a  lien  upon  such 
mine  *  *  *  to  secure  him  the  payment  for  the  *  *  *  material 
furnished  which  lien  shall  attach  in  every  case  to  such  mine."  L.  O.  L. 
§  7444.  "The  liens  provided  for  in  this  act  are  preferred  liens."  Id.,  § 
7447.  To  uphold  the  decree  rendered,  electricity,  when  furnished  at  a 
mine  for  illumination  or  for  power,  must  be  construed  to  be  a  "supply," 
thereby  bringing  it  within  the  designation  of  the  enactment  quoted.  As 
applied  to  material  objects,  a  supply  is  understood,  in  its  restricted  sense, 
to  mean  any  substance  that  is  consumed  with  its  use.  A  supply,  in  its 
more  general  signification,  is  anything  required  or  furnished  to  meet 
a  need.  8  Words  &  Phrases,  6802.  As  used  in  the  statute  under  con- 
sideration, "supplies"  undoubtedly  comprise  any  substance  the  use  of 
which  might  reasonably  tend  to  the  working  or  contribute  to  the  devel- 
opment of  a  mine.  Electricity,  when  employed  to  illumine  a  mine,  enables 
laborers  to  work  therein  with  almost  the  same  success  as  in  the  daylight, 
thus  materially  contributing  to  the  search  for  and  the  development  of 
a  mineral  vein.  The  object  of  all  mining  operations  is  to  secure  valuable 
metals  freed  as  much  as  practicable  from  all  other  substances.  In  quartz 
mining  the  crushing  of  rock  containing  mineral  reduces  the  bulk  by 
eliminating  much  of  the  superfluous  matter,  making  it  possible  profitably 
to  carry  the  resulting  auriferous  and  argentiferous  ores  to  market.  By 
the  use  of  suspended  copper  wires  electricity  can  be  transmitted  from 
the  place  where  it  is  generated  to  the  mouth  of  a  mine  in  almost  inac- 
cessible mountains  and  ravines,  and  there  successfully  used  to  operate 
quartz  mills.    Mines  which  a  few  years  ago  were  almost  worthless  have, 


414  Water  and  Mineral  Cases.  [Oregon 

by  the  employment  of  electricity,  become  very  valuable,  affording  profit- 
able employment  to  laborers  and  yielding  rich  returns  to  the  owners. 
Electricity  is  capable  of  propelling  machinery  and  of  illuminating  mine 
and  mill  by  continuous  operation,  and  as  this  modern  agent  is  consumed 
by  its  use,  so  far  as  susceptible  of  discernment,  and  supplies  a  very  ur- 
gent need  tending  to  the  proper  working  and  development  of  a  mine, 
it  is  believed  that  such  force  is  a  supply  within  the  scope  of  that  term 
and  for  the  use  of  which  a  lien  may  fairly  be  implied  from  the  statute. 
The  Enterprise   Mining   Company   stipulated   in   writing   to   pay   the 
Condor  Water  &  Power  Company  a  minimum  rate  of  $225  a  month 
for  electricity  of  a  specified  character  and  voltage  with  which  to  operate 
the  mines  and  mill.     It  is  asserted  by  plaintiff's  counsel  that  the  evi- 
dence fails  to  show  a  use  of  the  specified  amount  of  power  or  that  any 
of  it  was  employed  in  the  mine.     The  testimony  shows  that  electricity 
was  furnished  at  the  mine  of  the  quality  and  kind  demanded  by  the  terms 
of  the  contract,  and,  the  supply  having  thus  been  delivered  at  the  proper 
place,  the  burden  of  disproving  the  employment  of  the  measure  of  the 
power  was  imposed  on  the  Enterprise  Mining  Company,  or  on  the  plaintiff, 
who  would  succeed  by  the  production  of  such  proof.  Fitch  v.  Howitt,  32 
Or.  396,  409,  52  Pac.  192.    No  attempt,  however,  was  thus  made  to  defeat 
the  lien.  It  appears  that  prior  to  March  20,  1907,  the  Condor  Water  & 
Power  Company  undertook  to  secure  a  lien,  but  that  its  efforts  in  that  di- 
rection were  futile  or  unsatisfactory.    The  corrected  lien  was  filed  within 
the  time  limited  therefor  after  furnishing  the  supplies,  whereupon  the  pre- 
ceding claims  were  abandoned.    The  right  to  file  a  proper  lien  continued 
until  the  expiration  of  the  time  allowed  to  file  an  original  lien.  Jones, 
Liens   (2d  Ed.),  §  1455.     The  lien  foreclosed  was  not  filed  until  after 
plaintiff's  suit  was  instituted,  but,  as  the  material  was  furnished  in  part 
nearly  a  year  prior  to  the  execution  of  the  mortgage,  the  lien  was  prop- 
erly decreed  to  be  prior  to  the  mortgage.    Henry  v.  Hand,  36  Or  492,  59 
Pac.  330. 

Other  errors  are  assigned,  but  deeming  them  unimportant,  the  decree 
is  affirmed. 


1909] 


Hollett  v.  Davis. 


415 


HOLLETT  v.  DAVIS. 

[Supreme    Court  of  Washington,  July  30,  1909.] 
54  Wash.  326,  103  Pac.  423. 
«     .         i-     „:„„   u/ator  r.ourse — Washington    Statute. 
Code,  sec.  5829)    which  gives  the  owner  •»■»„"  can  m/theS  water 

water  to  form  a  water  course. 

9       Same Riqhts  of  Riparian  Proprietors. 

\ipaTn  proprietors  along  a  -ft  -«  ?™tSiSS  t^ow  if  it  i^Tont 

to  d'vertis  acquired  by  grant,  prescription,  or  prior  appropriation. 


CASE   NOTE. 

Spring  Sufficient  to  Form  a  Stream — 
Appropriation    and    Diversion. 

I.  In  General,  415. 

A.  Classes    of   Springs    as 

to  Origin,  415. 

B.  Classes    op   Springs    as 

to  Strength  op  Flow, 
416. 

1.  General  Rule,  416. 

2.  Pacific     Coast     Doc- 

trine, 418. 

C.  Appropriation    of  Wat- 

ers    of     Springs,  419. 

1.  General  Rule,  419. 

2.  Spring   Not   Forming 

Stream,  419. 

3.  Spring  Forming 

Stream,  419. 

4.  Springs  on  Public  Do- 

main, 420. 

II.  Springs    Forming     Perma- 

nent Stream,  421. 
Ill      Diversion  of  Flow  of  Head 
Spring,  422. 
A      As    to    Diversion    Gen- 
erally,    and     Rights 
Thereunder,  422. 
B      Injunctive  Relief,  424. 
1.     Generally,  424. 
2      Joinder      of      Parties 

Plaintiff,    426. 
3.    Estoppel    by    Delay, 
427. 


4.  When  Granted,  427. 

5.  Proof  of  Damages,428. 

6.  Nominal       Damages, 

429. 

7.  Damages      Incapable 

of     Ascertainment, 
430. 

8.  Damages      Presumed 

from     Invasion    of 
Right,  431. 

9.  Decreeing  Damages  by 

Decree    of    Injunc- 
tion, 431. 

IV     Artificial  Channels  Becom- 
ing   Natural    Channels, 
432. 
A.     As   to,  Generally,   432. 
Canals     May     Become, 

When,  433. 
Conditions       of       Con- 
struction   and   Dedi- 
cation, 433. 
Existence     from     Time 

Out    of    Mind,  434. 
Prescriptive  Use,  434. 
Estoppel,  435. 
For  Temporary  Use  or 
Personal         Conven- 
ience only,  436. 

I.      In  General. 
Classes  of  Springs  as  to  Origin. 
Springs  arising  upon  land  are  of  two 
classes:     (1)  Those  which  are  fed  purely 
by    percolating    waters    seeping    through 


B. 


D. 

E. 
F. 
G. 


416 


Water  and  Mineral  Cases.         [Washington 


3.  Same — Diversion  from  Channel — Equitable  Rights. 

Where  one  diverts  the  stream  of  water  flowing  from  a  spring  out  of  its  original 
channel  into  a  new  channel,  where  it  is  permitted  to  flow  uninterruptedly  for  thirty- 
years  and  a  third  party,  relying  upon  the  continuance  of  the  flow  in  the  new  channel, 
acquires  lands  bordering  on  such  new  channel  and  has  made  valuable  improve- 
ments thereon,  which  will  become  valueless  if  the  water  is  returned  to  the  original 
channel,  equity  will  regard  the  new  or  artificial  channel  as  the  natural  channel 
of  the  stream. 

4.  Same — Estoppel. 

A  proprietor  of  land  in  which  a  spring  rises  from  a  stream  who  diverts  such 
stream  into  an  artificial  channel  and  suffers  it  to  remain  in  its  changed  condition 
for  a  period  of  time  exceeding  the  statute  of  limitations,  as  against  persons  making 
a  beneficial  use  of  the  water  in  such  new  or  artificial  channel,  is  estopped  from 
returning  the  water  to  the  natural  or  original  channel  to  the  injury  or  loss  of  the 
persons  making  such  beneficial  improvements.     Dictum. 


the  surrounding  earth;  and,  (2)  those 
which  are  formed  by  the  rising  or  break- 
ing out  of  definite  underground  channels 
or  water  courses.  Metcalf  v.  Nelson,  8 
S.  Dak.  87,  65  N.  W.  911,  59  Am.  St. 
Rep.   746    (1895). 

As  to  the  water  rights  of  owners  of 
land  in  which  springs  are  located,  the 
authorities  distinguish  between  springs 
that  are  fed  by  the  seepage  of  water 
generally  through  and  from  the  sur- 
rounding earth  and  those  that  are  formed 
by  the  outbreak  upon  the  surface  of  def- 
inite underground  water  courses.  Metcalf 
v.  Nelson,  8  S.  Dak.  87,  65  N.  W.  911, 
59  Am.  St.  Rep.  746  (1895). 

Springs  which  are  the  result  of  the 
outbreak  of  underground  water  courses 
or  channels  are  governed  by  the  same 
rules  of  law  that  govern  surface  streams. 
Metcalf  v.  Nelson,  8  S.  Dak.  87,  65  N.  W. 
911,  59  Am.  St.  Rep.  746   (1895). 

In  the  absence  of  any  evidence  to  the 
contrary,  it  will  be  presumed  that  a 
spring  is  formed  and  fed  by  percolating 
waters  and  that  it  is  not  the  result  of 
the  outbreak  upon  the  surface  of  an  un- 
derground stream  or  channel.  Hanson  v. 
McCue,  42  Cal.  303,  10  Am.  Rep.  299 
(1871)  ;  Tampa  Waterworks  Co.  v.  Cline, 
37  Fla.  586,  20  So.  780,  53  Am.  St.  Rep. 
262,  33  L.  R.  A.  376  (1896);  Swett  v. 
Cutts,  50  N.  H.  439,  9  Am.  Rep.  276 
(1870);  Elster  v.  Springfield,  49  Ohio 
St.  82,  30  N.  E.,  274  (1892)  ;  Metcalf  v. 
Nelson,  8  S.  Dak.  87,  65  N.  W.    911,  59 


Am.  St.  Rep.  746  (1895).  It  is  said 
that  such  presumption  is  necessary  in 
order  to  obviate  the  difficulty  of  deter- 
mining whether  the  water  flows  in  a 
channel  beneath  the  soil.  Swett  v  Cutts, 
50  N.  H.  439,  9  Am.  Rep.  276   (1870). 

B.      Classes  of  Springs  as  to  Strength 
of    Flow. 
1.      General  Rule. 

Springs  are  also  divided,  distinguished 
by  the  strength  of  the  flow  or  volume  of 
water,  into  two  classes:  (1)  Those 
which  are  not  of  sufficient  volume  to 
form  a  stream  or  water  course;  and  (2) 
those  forming  a  natural  stream  or  water 
course,  however  diminutive  in  size  and 
volume.  Where  the  flow  of  water  from 
a  spring  is  not  sufficient  in  quantity  or 
volume  to  form  a  natural  stream,  the 
waters  of  the  spring  are  governed  by  the 
rules  of  law  relating  to  and  governing 
percolating  waters.  Metcalf  v.  Nelson, 
8  S.  Dak.  87,  65  N.  W.  911,  59  Am.  St. 
Rep.  746   (1895). 

There  is  a  distinction  in  the  right  of 
the  proprietor  in  whose  lands  a  spring 
rises  to  deal  with  the  waters  thereof 
between  the  cases  in  which  the  flow 
of  water  is  sufficient  to  form  a  channel 
or  stream  and  those  in  which  it  is  not. 
In  those  cases  in  which  the  spring  has 
not  sufficient  flow  to  form  a  channel  or 
stream,  and  therefore  has  no  outlet,  the 
proprietor  on  whose  land  it  rises  is  en- 
titled to  the  use  of  all  the  water  in  the 


1909] 


Hollett  v.  Davis. 


417 


5.  Same — Evidence — Prescriptive    Use. 

A  person  making  such  beneficial  use  does  not  have  to  show  a  prescriptive  right 
in  himself  or  a  use  bv  himself  and  predecessors  for  the  period  of  the  statute  of 
limitations  in  order  to"  prevent  the  return  of  the  water  to  the  original  channel ;  all 
he  need  show  is  that  the  person  diverting  has  permitted  the  stream  to  remain  in 
the  new  channel  for  the  prescriptive  period,  and  that  he  has  made  a  beneficial  use 
of  the  water.     Dictum. 

6.  Same — Division   of  Water. 

A  division  of  the  water  flowing  in  a  stream  from  a  spring  diverting  into  a  new 
channel  cannot  be  made  without  evidence  of  the  quantity  of  water  required  by  the 
upper  proprietor,  the  proportion  of  water  permitted  to  flow  in  the  new  channel  and 
the  proportion  of  that  permitted  to  flow  actually  used  or  required  by  the  lower 
proprietor. 

Appeal  from  superior  court  Klickitta  County.  Defendant  appealed 
from  judgment  in  favor  of  plaintiffs.  Reversed,  remanded  with  di- 
rections. 


spring,  and  may  conduct  it  to  other  prop- 
erty. Hanson  v.  McCue,  42  Cal.  302,  10 
Am.   Rep.   299    (1871). 

The  question  of  whether  where  perco- 
lating waters  appear  at  the  surface  only 
at  the  point  of  the  spring  and  at  once 
sink  away  again  into  the  surrounding 
soil  and  resume  their  character  of  wan- 
dering, seeping  waters,  the  rights  of  the 
proprietor  of  the  land  on  which  the  water 
appears  come  and  go  with  the  appear- 
ance and  disappearance  of  the  water, 
was  raised  but  not  decided  in  Metcalf  v. 
Nelson,  8  S.  Dak.  87,  65  N.  W.  911,  59 
Am.  St.  Rep.  746   (1895). 

Where  a  spring  arose  on  land  of  one 
proprietor,  not  sufficient  in  volume  to 
form  a  natural  stream  and  flow  off  of 
the  premises,  and  was  conducted  by  the 
owner  through  a  pipe  to  a  trough,  and 
used  for  watering  stock,  the  waste  or 
surplus  water  then  sinking  into  and  per- 
colating onto  or  into  the  land  of  an  ad- 
joining proprietor,  not  rising  on  the  land 
of  the  latter  as  a  stream,  but  seeping  or 
percolating  through  the  soil,  making  its 
presence  manifest  by  brightening  the 
color  of  and  increasing  the  growth  of  the 
grass, — the  court  held  that  such  a 
spring  belongs  to  the  owner  of  the  land 
on  which  it  arises,  and  is  as  much  a 
part  of  the  soil  as  minerals  beneath  the 
surface,  and  that  none  of  the  rules  of 
W.  &  M.— 27 


law  relating  to  water  courses  and  diver- 
sion apply.  Bloodgood  v.  Ayres,  108  N. 
Y.  400,  15  N.  E.  433,  2  Am.  St.  Rep.  443 
(1888). 

Connection  i.— Roath  v.  Driscoll,  20 
Conn.  533,  52  Am.  Dec.  352  (1850); 
Gillett  v.  Johnson,  30  Conn.  180  (1861). 
Massachusetts. — Greenleaf  v.  Francis, 
35  Mass.  (18  Pick.)  117  (1836);  Ma- 
comber  v.  Godfrey,  108  Mass.  219,  11 
Am.  Rep.  349   (1871). 

New  Hampshire. — Bassett  v.  Salsbury 
Mfg.  Co.,  43  N.  H.  569,  82  Am.  Dec.  179 
(1862). 

Neio  York.— Goodale  v.  Tuttle,  29  N. 
Y.  459  (1864)  ;  Village  of  Delhi  v.  You- 
man,  45  N.  Y.  362,  6  Am.  Rep.  100 
(1871);  Ellis  v.  Duncan,  21  Barb.  (N. 
Y.)  230,  15  Mor.  Min.  Rep.  182  (1855). 
Ohio. — Frazier  v.  Brown,  12  Ohio  St. 
294    (1861). 

Pennsylvania. — Haldeman  v.  Bruck- 
hart,  45  Pa.  St.  514,  5  Mor.  Min.  Rep. 
108,  84  Am.  Dec.  511    (1863). 

Vermont.— Chatfield  v.  Wilson,  28  Vt. 
49    (1855). 

An  adjoining  proprietor  has  no  abso- 
lute and  unqualified  right  to  water  per- 
colating from  land  of  his  neighbor. 
Bassett  v.  Salsbury  Mfg.  Co.,  43  N.  H. 
569,  82  Am.  Dec.  179  (1862)  ;  Wheatley 
v.  Baugh,  25  Pa.  St.  528,  13  Mor.  Min. 
Rep.    374,    64     Am.    Dec.    721      (1855); 


418 


Water  and  Mineral  Cases.         [Washington 


For  appellant — W.  B.  Presby. 

For  respondents — E.  C.  Ward  and  N.  L.  Ward. 

FULLERTON,  J.  In  1873  tne  predecessors  in  interest  of  the  ap- 
pellant settled  upon  and  thereafter  acquired  from  the  government  the 
N.  y2  of  the  S.  E.  l/\  of  section  1  in  township  4  north,  of  range  14 
east,  of  the  Willamette  meridian.  Near  the  south  side  of  the  tract, 
about  midway  between  its  east  and  west  ends,  is  a  large  perpetual  spring, 
the  stream  from  which  originally  flowed  southerly  in  a  natural  channel 
across  the  S.  y2  of  the  S.  E.  y^  of  section  1  and  across  the  E.  y2  of 
section  12,  in  the  same  township  and  range,  into  a  water  course  called 


Halderman  v.  Bruckhart,  45  Pa.  St.  514, 
5  Mor.  Min.  Rep.  108,  84  Am.  Dec.  511 
(1863). 

There  is  not  any  jus  alienum  on  the 
part  of  the  lower  proprietor,  and  there- 
fore the  maxim  Sic  utere  tuo  ut  alienum 
non  laedas,  does  not  apply.  Roath  v. 
Driscoll,  20  Conn.  533,  542,  52  Am.  Dec. 
352  (1850);  Brown  v.  Illius,  27  Conn. 
84,  71  Am.  Dec.  49  ( 1858)  ;  Trustees  Wa- 
bash &  E.  Canal  v.  Spears,  16  Ind.  441, 
79  Am.  Dec.  444  (1861)  ;  Halderman  v. 
Bruckhart,  45  Pa.  St.  514,  5  Mor.  Min. 
Rep.   108,   84  Am.  Dec.  511    (1863). 

While  it  is  a  natural  law  that  perco- 
lating water  will  drain  off  through  the 
lower  land  or  tenement  to  its  advantage 
or  disadvantage,  as  the  case  may  be,  an 
interference  in  such  case  with  the  nat- 
ural law,  to  put  the  water  to  a  beneficial 
use  upon  land  of  the  upper  tenement,  is 
justified,  because  the  general  law  of  so- 
ciety is  that  the  owner  of  the  land  has 
full  dominion  over  what  is  above,  upon 
or  below  the  surface,  and  the  owner,  in 
putting  the  water  arising  upon  it  to  a 
beneficial  use,  is  exercising  merely  legal 
rights.  Barkeley  v.  Wilcox,  86  N.  Y.  147, 
40  Am.  Rep.  519   (1881). 

The  proprietor  of  the  soil  on  which 
a  spring  arises  has  more  than  the  ordi- 
nary usufruct  in  the  waters  of  the 
spring,  so  long,  at  least,  as  it  is  held  in 
the  spring.  He  may  consume  or  dispose 
of  it  as  he  chooses;  he  might  convey  it 
away  in  pipes  or  carry  it  off  in  tanks. 


Metcalf  v.  Nelson,  8  S.  Dak.  87,  65  N. 
W.  911,  59  Am.  St.  Rep.  746  (1895). 
See  Bliss  v.  Greeley,  45  N.  Y.  671,  6 
Am.  Rep.  157  (1871);  Buffum  v.  Har- 
ris, 5  R  I.  243  (1858)  ;  Clark  v.  Conroe, 
38  Vt.  469   (1866). 

That  the  proprietor  of  land  upon  which 
a  spring  arises  has  such  a  property  right 
in  and  to  the  corpus  of  the  water  in  such 
spring  as  will  entitle  him  to  recover 
for  water  carried  away  therefrom,  was 
held  in  Metcalf  v.  Nelson,  8  S.  Dak.  87, 
65  N.  W.  911,  59  Am.  St.  Rep.  746 
(1895). 

Where  a  spring,  not  sufficient  in  vol- 
ume to  form  a  natural  stream  or  water 
course,  arises  on  unoccupied  public  lands, 
but  the  waters  thereof  are  appropriated 
by  means  of  an  artificial  channel  extend- 
ed into  the  spring,  the  appropriator  ac- 
quires a  right  thereto  under  the  United 
States  Statutes,  sections  2339,  2340,  and 
Oregon  Session  Laws,  1893,  p.  150.  Bros- 
nan  v.  Harris,  39  Or.  148,  150,  65  Pac. 
867,  87  Am.  St.  Rep.  649,  54  L.  R.  A. 
628. 

As  to  appropriation  of  the  waters  of 
springs,  see  I,  C,  this  note. 

2.      Pacific  Coast   Doctrine. 

In  the  Pacific  Coast  states  and  terri- 
tories, where  they  have  much  arid  land 
and  scarcity  of  water,  the  common-law 
rules  governing  water  are  held  to  be  in- 
applicable to  local  conditions,  or  appli- 
cable only  to  a  limited  extent,  and  do  not 


1909] 


Hollett  v.  Davis. 


419 


Mill  Creek.  The  water  from  the  spring  formed  a  natural  water  course, 
flowing  at  all  seasons  of  the  year  a  considerable  body  of  water.  To 
the  west  of  the  spring,  and  separated  therefrom  by  a  slight  ridge,  was 
a  natural  channel  through  which  water  flowed  during  the  wet  season 
of  the  year,  called  Gilmore  Creek.  This  creek  had  its  source  to  the 
north  of  the  appellant's  land,  and  ran  in  a  southwesterly  direction  across 
his  land  in  section  i,  and  through  the  W.  y2  of  the  N.  W.  ji,  and  the 
N.  y2  of  the  S.  W.  i/4  of  section  12  above  mentioned.  Immediately 
south  of  the  spring  on  the  land  in  section  1  was  a  marsh,  to  drain 
which  the  original  locator  cut  a  ditch  from  a  point  a  short  distance  below 


control  as  to  percolating  waters  and 
waters  collected  in  subterranean  reser- 
voirs or  "artesian  belts;"  and  it  is  there 
held  that  a  spring  cannot  be  diverted  by 
a  proprietor  on  whose  land  it  arises,  to 
the  injury  of  a  proprietor  to  whom  tha 
water  naturally  comes  by  percolation 
from  the  spring.  Strait  v.  Brown,  16 
Nev.  317,  40  Am.  Rep.  497    (1881). 

This  Pacific  Coast  Doctrine  will  be  dis- 
cussed in  a  note  to  Boyce  v.  Cupper,  37 
Or  256,   in  volume  2,  of  this  series. 

C.      Appropriation   of  Waters  of 
Springs. 
1.      General    Rule. 
The  general  rule  in  regard  to  appro- 
priation of  water  is  that  all  waters  which 
have   not   already   been   appropriated   to 
a  valuable  use  may  be  appropriated,  and 
this   right   includes   the  right  to   appro- 
priate   the    waters    of    a    spring    which 
forms  the  source  or  fountain  head  of  a 
stream.    Ely  v.  Ferguson,  91  Cal.  187,  27 
Pac.  587    (1891)  ;   Brosnan  v.  Harris,  39 
Or.   150,  65  Pac.  867,   87  Am.   St.  Rep. 
649,   54  L.  R.  A.   628    (1901);    Scott  v. 
Toomey,   8   S.   Dak.   639,   67   N.   W.   838 
(1896). 
See  also  post  II,  this  note. 
2.      Springs    Not   Forming   Stream. 
There   ia    no    question    as    to    owner- 
ship  of  the  water  flowing  from   springs 
on  a  proprietor's  land  where  no  bed  or 
channel  is  formed.     Razzo  v.  Varni,  81 
Cal.  289,  22  Pac.  848    (1889);  Morrison 
v.  Officer,  48  Or.  569,  87  Pac,  896  (1896). 
Or  as  to  right  to  divert  same    by    the 


proprietor  and  to  apply  it  to  his  own 
beneficial  use.  Bloodgood  v.  Ayers,  108 
N.  Y.  400,  15  N.  E.  433,  2  Am.  St.  Rep. 
243   (1888). 

See  also  post  II,  this  note. 

Where  the  admitted  quantity  of  the 
waters  rising  from  a  spring  is  so  insig- 
nificant that  a  surface  stream  is  impossi- 
ble, the  water  belongs  to  the  person  upon 
whose  land  it  first  arises.  Morrison  v. 
Officer,  48  Or.  569,  87  Pac.  896  (1896— 
the  decision  was  under  B.  &  C.  Comp., 
§    5019). 

3.      Springs    Forming    Stream. 

The  right  to  appropriate  the  waters  of 
a  spring  is  incident  to  the  ownership  of 
the  land  upon  which  the  spring  arises, 
but  the  right  of  absolute  appropriation 
as  against  other  landowners  who  would 
be  injured  thereby  is  limited  to  a  reason- 
able use  of  the  waters;  and  what  consti- 
tutes a  reasonable  use  is  a  question  be- 
tween the  several  landowners,  except  in 
those  cases  where  the  waters  of  a  public 
stream  or  water  course  are  affected. 
People  v.  New  York  Carbonic  Acid  Gas 
Co.,  196  N.  Y.  421,  90  N.  E.  441  (1909), 
reversing  119  N.  Y.  Supp.  1151   (1909). 

The  owner  of  land  on  which  a 
spring  arises  sufficient  in  volume  to  form 
a  natural  channel,  which  flows  onto  and 
through  the  land  of  an  adjoining  pro- 
prietor, will  not  be  permitted  to  impound 
and  restrain  the  water  of  the  stream 
to  the  injury  of  lower  proprietors. 
Howe  v.  Norman,  13  R.  I.  488  (1882)  ; 
Boynton  v.  Gillman,  53  Vt.  17   (1880). 


420 


Water  and  Mineral  Cases.  [Washington 


the  spring  across  the  bridge  into  Gilmore  Creek,  and  turned  the  water 
from  the  spring  into  that  creek.  This  left  dry  a  tract  of  meadow  land 
containing  eight  or  ten  acres  in  section  12,  and  to  irrigate  this  tract  a 
new  ditch  was  cut  from  Gilmore  Creek,  commencing  at  a  point  about 
one-fourth  of  a  mile  below  the  mouth  of  the  first  ditch  mentioned,  and 
running  in  a  southerly  direction  to  the  meadow.  Water  taken 
through  this  ditch  was  used  intermittently  for  a  number  of  years  to 
irrigate  small  parts  of  this  meadow,  and  water  was  taken  from  the  first 
ditch  for  domestic  use  and  to  irrigate  a  tract  of  about  five  acres  lying 
south  of  the  spring,  but  with  these  exceptions  all  the  water  from  the 


Where  the  waters  of  a  spring  are  suffi- 
cient in  volume  to  form  a  natural 
stream,  the  owner  of  the  land  on  which 
the  spring  arises  cannot  divert  the  wa- 
ters of  the  spring  to  the  injury  of  a 
lower  proprietor  without  rendering  him- 
self liable  to  compensation  for  injuries 
sustained.  Colrick  v.  Swinburne,  105  N. 
Y.  503,   12  N.  E.  427    (1887). 

The  size  or  volume  and  length  of  a 
stream  arising  from  a  spring  is  imma- 
terial in  determining  its  character  as  a 
natural  water  course,  and  the  rights  at- 
taching thereto  or  therein,  provided  only 
it  be  in  truth  and  in  fact  a  stream 
within   the    recognized    characteristics. 

California. — Chavet  v.  Hall,  93  Cal. 
407,  28  Pac.  1066    (1892). 

Illinois. — School  Trustees  v.  Scroll, 
•120  111.  509,  12  N.  E.  243,  60  Am.  Rep. 
575    (1887). 

Iowa. — Van  Orsdol  v.  Burlington  C.  R. 
&  N.  T.  Co.,  56  Iowa  470  (1881)  ;  Hinkle 
v.  Avery,  88  Iowa  47,  85  N.  W.  55,  45 
Am.  St.  Rep.  224    (1893). 

Kansas. — Union  Pac.  R.  Co.  v.  Dyche, 
31  Kan.  120,  1  Pac.  243    (1883). 

Massachusetts. — Luther  v.  Winnisim- 
met,  63  Mass.    (9  Cush.)    171    (1851). 

Mississippi. — Ferris  v.  Wellborn,  64 
Miss.  29,  8  So.  165   (1886). 

Nebraska. — Pyle  v.  Richards,  17  Neb. 
180,  22  N.  W.  370  (1885)  ;  Town  v.  Mis- 
souri Pac.  R,  Co.,  50  Neb.  768,  70  Pac. 
402  (1897). 

Where  the  owner  of  the  premises  on 
which  a  spring  arises  wrongfully  ap- 
propriates  it  to  the  injury  of  a  lower 


proprietor,  the  injury  is  continuous,  and 
is  not  referable  to  the  date  on  which 
the  original  wrong  was  committed,  and 
the  fact  that  the  date  of  the  original 
wrong  is  beyond  the  statute  of  limita- 
tions will  not  prevent  a  recovery  of  dam- 
ages which  have  accrued  within  the  stat- 
ute of  limitations.  Colrick  v.  Swin- 
burne, 105  N.  Y.  503,  12  N.  E.  427 
(1887).  See  Arnold  v.  Hudson  River  R. 
Co.,  55  N.  Y.  662  (1874),  reversing  49 
Barb.  108  (1867)  ;  Uline  v.  New  York  C. 
&  H.  River  R.  Co.,  101  N.  Y.  98,  4  N.  E. 
536,  53  Am.  Rep.  123,  54  Am.  Rep.  661 
(1886)  ;  Waggoner  v.  Jermaine,  3  Denio 
(N.  Y.)  306  (1846);  Thayer  v.  Brooks, 
17  Ohio  489,  49  Am.  Dec.  474  (1848); 
Bare  v.  Hoffman,  79  Pa.  St.  71,  21  Am. 
Rep.  42   (1875). 

Where  a  spring  is  not  fed  by  a  visible 
stream  of  water  flowing  from  beyond  into 
it  or  from  water  arising  out  of  the  earth, 
and  is  without  outlet  in  any  definite 
channel,  but  by  means  of  seepage  and 
percolation  of  water  passes  through  and 
into  the  land,  and  the  spring  constitutes 
the  source  of  supply  of  a  natural  stream, 
an  appropriator  from  such  natural 
stream  obtains  rights  to  water  in  the 
spring  which  will  prevent  the  owner  of 
the  land  on  which  the  spring  arises  from 
diverting  it  to  his  own  use  to  the  injury 
of  the  appropriator  of  the  water  in  the 
stream.  Bruering  v.  Dorr,  23  Colo.  195, 
47  Pac.  290,  35  L.  R.  A.  640    (1896). 

4.      Springs    on     Public    Domain. 

Water  arising  on  lands  of  the  United 
States    flowing    from    a    spring    may    be 


1909  J 


Hollett  v.  Davis. 


421 


spring  was  suffered  to  flow  down  Gilmore  Creek,  from  1873,  until  it 
was  finally  diverted  in  1905  and  1906,  as  hereinafter  stated.  In  1889  or 
1890  one  of  the  predecessors  in  interest  of  respondents  settled  upon  the 
W  y2  of  the  S.  W.  Ya  and  the  N.  y2  of  the  S.  W.  1/4  of  section  12. 
The  locator  of  the  land  lived  thereon  for  about  five  years,  during  which 
time  he  acquired  title  thereto  from  the  government.  The  only  water 
on  the  premises  was  that  flowing  in  Gilmore  Creek,  and  he  made  use 
thereof  during  his  residence  on  the  land,  for  domestic  and  culinary  pur- 
poses In  1894  he  sold  to  the  immediate  predecessor  of  the  respond- 
ents     This  person  did  not  live  on  the  land  during  the  two  years  he 


appropriated  and  diverted  to  other  public 
land  by  means  of  ditches,  etc.,  and  then 
applied   to  valuable   and   beneficial   pur- 
poses,   and    the    right    to    the    same    ac- 
quired  as    against   any   one   who    subse- 
quently settles  upon  or  obtains  the  title 
to    land    upon    which    such   springs   are' 
situated.    Cross  v.  Kitts,  69  Cal.  217,  10 
Pac.   409,  54  Am.  Rep.  558    (1886);   De 
Necbchea  v.  Curtis,  80  Cal.  397,  20  Pac. 
563,   22   Pac.    198    (1889):    Ely  v.   Fer- 
guson, 91  Cal.  187,  27  Pac.  587    (1891)  ; 
Williams  v.  Harter,  121  Cal.  47,  53  Pac. 
405    (1898).     And  this  is  true  whether 
the   volume   of   water   issuing   from   the 
spring    is    sufficient   to    form    a    natural 
stream  or  not.     See  Brosnan  v.  Harris, 
39  Or.  148,  150,  65  Pac.  867,  87  Am.  St. 
Rep.  649,  54  L.  R.  A.  628   (1901). 

The  water  flowing  from  springs  upon 
public  land  of  the  United  States  situated 
in  California  may  be  appropriated  under 
provision  of  section  1410  of  the  Cali- 
fornia Civil  Code,  and  the  fact  that  the 
ditch  by  which  the  waters  are  conveyed 
is  constructed  up  to  the  mouth  of  the 
spring  or  springs  can  in  no  wise  affect 
the  right  to  appropriate  or  the  sufficiency 
of  appropriation.  Ely  v.  Ferguson,  91 
Cal.  187,  27  Pac.  5S7    (1891). 

II.     Spring    Forming    Permanent 
Stream. 

In  this  note  it  is  not  practical  to  go 
into  a  discussion  of  what  constitutes  a 
natural  stream,  but  it  may  be  remarked 
that  in  the  case  of  Strait  v.  Brown,  16 
Nev.   317,  40  Am.   Rep.  497    (1881),  it 


was  decided  that  a  creek  having  its 
source  in  a  spring  which  ran  a  short 
distance  through  a  natural  surface  chan- 
nel and  then  discharged  into  a  large 
slough,  which  had  no  natural  surface 
outlet,  was  a  water  course. 

The  right  of  appropriation  attaches  to 
a  spring  furnishing  a  stream  of  water 
that  rises  to  the  surface.  Brosnan  v. 
Harris,  39  Or.  148,  65  Pac.  867,  87  Am. 
St.  Rep.  649,  54  L.  R.  A.  628  (1901); 
Morrison  v.  Officer,  48  Or.  569,  87  Pac. 
896  (1896 — the  decision  was  under  B.  & 
C.  Comp.,  §  5019). 

In  case  of  springs  which  have  a  well- 
defined  channel  which  conducts  water 
into  a  stream,  if  the  water  of  the  latter 
stream  is  appropriated,  this  is,  of  itself, 
an  appropriation  of  the  water  of  the 
spring  to  a  beneficial  use.  Boyce  v. 
Cupper,  37  Or.  256,  61  Pac.  642,  follow- 
ing Lowe  v.  Rizor,  25  Or.  551,  37  Pac. 
82    (1894). 

Where  a  spring  is  sufficiently  strong 
to  form  a  stream  which  flows  into  and  is 
tributary  to  a  river,  it  is  considered  as 
part  of  the  river  for  the  purposes  of  ap- 
propriation of  water.  Moyer  v.  Preston, 
6  Wyo.  308,  44  Pac.  845,  71  Am.  St. 
Rep.    914    (1896). 

A  spring  of  sufficient  strength  and 
volume  to  form  a  running  stream  is  not 
governed  by  the  Washington  Statute 
(Ballinger's  Ann.  Codes  and  Stats.,  sec. 
4114;  Pierce's  Code,  sec.  5829),  which 
gives  to  the  owner  of  the  land  upon 
which  the  spring  arises  the  use  of  the 


422 


Water  and  Mineral  Cases.         [Washington 


owned  it,  but  made  use  of  the  water  in  the  creek  for  domestic  purposes, 
and  for  the  purposes  of  watering  stock,  hauling  it  from  the  creek  to 
his  residence.  The  respondents  acquired  the  property  in  1896.  In  that 
year  they  erected  a  house  and  barn  on  the  premises,  and  moved  thereon 
with  their  family,  where  they  have  resided  continuously  until  the  present 
time.  During  their  occupancy  they  have  constantly  used  the  water  flow- 
ing down  the  creek  for  domestic  purposes,  and  for  the  purpose  of 
irrigating  an  orchard  and  garden  during  the  irrigating  season  of  the 
year.  There  is  no  water  on  the  premises  during  the  dry  season  of  the 
year  either  for  domestic  use  or  with  which  to  irrigate  other  than  that 


waters  flowing  therefrom,  provided  such 
owner  can  use  the  water  upon  his  own 
premises.  Hollett  v.  Davis,  54  Wash. 
326,  103  Pac.  423  (1909);  Miller  v. 
Wheeler,  54  Wash.  427,  103  Pac.  641 
(1909). 

The  proprietor  of  land  upon  which 
arises  a  spring  sufficient  in  force  and 
quantity  to  create  a  stream  of  water  ac- 
customed to  flow  onto  and  through  the 
land  of  the  lower  proprietor,  has  in  the 
waters  of  such  spring  and  stream  the 
rights  of  a  riparian  owner  only,  and  can- 
not divert  the  water  from  its  natural 
channel.  Lord  v.  Meadville  Water  Co., 
135  Pa.  St.  122,  19  Atl.  1007,  20  Am.  St. 
Rep.  864,  8  L.  R.  A.  202   (1890). 

A  proprietor  on  whose  land  a  stream 
commences  and  flows  through  a  well-de- 
fined channel  onto  and  through  the  lands 
of  another  proprietor  cannot  use  all  the 
waters  of  such  stream  so  as  to  deprive 
other  riparian  owners  of  their  rights 
therein.  Ulbricht  v.  Eufaula  Water  Co., 
86  Ala.  587,  6  So.  78,  11  Am.  St.  Rep. 
72,  4  L.   R.  A.   572    (1888). 

Rights  cannot  be  acquired  in  the  wa- 
ters of  springs  of  sufficient  strength  to 
form  a  running  stream  which  are  sit- 
uated along  the  channel  of  a  stream,  and 
which  constitute  its  direct  source  of  sup- 
ply, by  entering  upon,  cleaning  out,  and 
thereby  increasing  the  water  supply,  as 
against  prior  appropriations  in  good 
faith  of  the  whole  of  the  waters  of  the 
stream.  Malad  Valley  Irr.  Co.  v.  Camp- 
bell, 2  Idaho  411,   18  Pac.  52    (1888). 

If  persons  can  go  upon  the  tributaries 


of  streams  whose  waters  have  all  been 
appropriated  and  applied  to  a  useful  and 
legitimate  purpose,  and  can  take  and  con- 
trol the  waters  of  such  tributaries,  then, 
indeed,  the  source  of  supply  of  all  ap- 
propriated natural  streams  may  be  en- 
tirely cut  off,  and  turned  away  from  the 
first  and  rightful  appropriators.  Malad 
Valley  Irr.  Co.  v.  Campbell,  2  Idaho  411, 
18  Pac.  52   (18S8). 

III.      Diversion  of  Flow  of   Head 
Spring. 

A.  As  to  Diversion  Generally,  and 
Rights    Thereunder. 

A  proprietor  at  the  head  of  a  stream 
who  has  changed  the  natural  flow  of  the 
waters  and  has  continued  such  change 
for  more  than  twenty  years,  cannot 
thereafter  restore  it  to  its  natural  chan- 
nel to  the  injury  of  lower  proprietors 
who  have  made  valuable  improvements 
in  reference  to  and  because  of  such  flow 
of  the  waters.  Murchie  v.  Gates,  78 
Me.  304,  4  Atl.  698  (1886)  ;  Belknap  v. 
Trimble,  3  Paige  Ch.  (N.  Y.)  577 
(1832). 

The  relative  relation  and  interests  of 
parties,  created  or  resulting  from  the 
change  of  natural  conditions  by  the  di- 
version of  waters,  become  fixed  by  pre- 
scription, and  embrace  parties'  reciprocal 
rights  and  duties  at  least  to  the  extent 
that,  so  long  as  such  relative  rights  exist 
and  are  asserted,  each  party  is  bound  in 
equity  to  abstain  from  doing  anything  to 
the  prejudice  of  the  other's  rights, 
founded  upon  the  relations  thus  created 


1909] 


Hollett  v.  Davis. 


423 


flowing  in  Gilmore  Creek  from  the  spring  arising  on  the  appellant's 
premises,  and  without  irrigation  neither  fruit  nor  vegetables  can  be 
grown  thereon.  In  1904  the  appellant  built  a  dam  across  the  original 
channel  of  the  creek  above  the  meadow,  on  section  12,  intending  to 
make  a  storage  basin  for  the  storage  of  water  for  use  in  irrigating  on  a 
more  extensive  scale  than  he  had  been  wont  to  do  theretofore,  and  in 
that  year  and  the  two  years  following,  turned  the  water  of  the  spring 
therein  for  a  period  during  the  dry  season  of  the  year,  preventing  any 
flow  of  the  waters  down  Gilmore  Creek  to  the  respondents'  land.  This 
action  was  brought  by  the  respondents  to  enjoin  this  diversion.  They 
contended,  and  the  court  below  decided,  that  the  appellant  by  diverting 


between  them.  Smith  v.  Youmans,  96 
Wia.  103,  70  N.  W.  1115,  65  Am.  St. 
Rep.  30,  37  L.  R.  A.  285   (1895). 

Where  a  stream  of  water  has  been  di- 
verted and  permitted  to  flow  for  ten 
years  without  objection,  it  cannot  be  re- 
stored to  its  original  course.  Woodbury 
v.  Short,  17  Vt.  387,  44  Am.  Dec.  344 
(1845). 

It  has  been  said  that  twenty  years' 
possession  of  a  diverted  water  course  is 
necessary  to  defeat  the  proprietor  of  the 
ancient  channel  and  prevent  him  from 
reclaiming  the  water.  Campbell  v.  Smith, 
8  N.  J.  L.  (3  Halst.)  140,  14  Am.  Dec 
400   (1825). 

The  exclusive  use  and  enjoyment  of' 
water  in  a  particular  way  for  twenty 
years,  without  interruption,  becomes  an 
adverse  enjoyment  sufficient  to  raise  a 
presumption  of  title  as  against  a  right 
in  any  other  person  which  might  have 
been,  but  was  not,  asserted.  Neither  is  it 
necessary  that  the  person  claiming  this 
prescriptive  right  to  the  use  of  water 
should  have  used  it  in  the  same  precise 
manner  during  the  twenty  years.  Belk- 
nap v.  Trimble,  3  Paige  Ch.  (N.  Y.)  577, 
605  (1832).  See  Murchie  v.  Gates,  78 
Me.  304,  4  Atl.  698  (1886);  Bullen  v. 
Runnels,  2  X.  H.  257,  9  Am.  Dec.  55 
(1820)  ;  Watkins  v.  Peck,  13  N.  H.  360, 
40  Am.  Dec.  156  (1843);  Sackrider  v. 
Beers,  10  Johns.  (N.  Y.)  241  (1813); 
Smith  v.  Adams,  6  Paige  Ch.  (N.  Y.) 
435     (1837);     Baldwin    v.    Calkins,     10 


Wend.  (N.  Y.)  167,  177  (1833); 
Townsend  v.  McDonald,  12  N.  Y. 
388,  391,  64  Am.  Dec.  508  (1855); 
Hammond  v.  Zehner,  23  Barb.  (N.  Y.) 
473  (1856);  Law  v.  McDonald,  9 
Hun.  (N.  Y.)  23  (1876);  Rexford  v. 
Marquis,  7  Lans.  (N.  Y.)  249,  262 
(1872). 

See  post  IV,  E,  this  note. 

As  to  what  use  of  water  will  not 
raise  presumption  of  grant  of  an  ease- 
ment, see  Stillman  v.  White  Rock  Mfg. 
Co.,  3  Woodb.  &  M.  550,  Fed.  Cas.  No. 
13,446   (1847). 

Diversion  of  water  from  its  natural 
channel  acquiesced  in  by  lower  riparian 
owners  for  a  period  of  thirty  years 
is  binding,  and  prevents  them  from 
changing  the  flow  of  the  stream 
into  the  old  channel.  Matheson  v.  Ward, 
24  Wash.  407,  64  Pac.  520,  85  Am.  St. 
Rep.  955  (1901).  See  Delaney  v.  Boston, 
2  Harr.  (Del.)  489  (1839);  Murchie  v. 
Gates,  78  Me.  300,  4  Atl.  698  (1886); 
Matheson  v.  Hoffman,  77  Mich.  420,  43 
N.  W.  879,  6  L.  R.  A.  349  (1889)  ;  Kray 
v.  Muggli,  84  Minn.  90,  86  N.  W.  882, 
87  Am.  St.  Rep.  332,  54  L.  R.  A.  473 
( 1901 )  ;  Shepardson  v.  Perkins,  58  N.  H. 
354  (1878)  ;  Belknap  v.  Trimble,  3  Paige 
Ch.  (N.  Y.)  577  (1832)  ;  Ford  v.  Whit- 
lock,  27  Vt.  265  (1855)  ;  Smith  v.  You- 
mans, 96  Wis.  1003,  70  N.  W.  115,  65 
Am.  St.  Rep.  30,  37  L.  R.  A.  285 
(1897). 

See  post  IV,  E,  this  note. 


424 


Watee  and  Minekal  Cases.         [Washington 


the  water  for  so  long  a  time  from  its  natural  channel  into  Gilmore  Creek 
made  Gilmore  Creek  the  natural  channel  of  the  stream  from  the  spring, 
and  estopped  the  appellant  from  returning  it  to  its  natural  channel  after 
the  respondents  had  begun  putting  it  to  a  beneficial  use.  A  judgment 
was  entered  in  that  court  requiring  the  appellant  to  permit  forty  per 
cent,  of  the  water  of  the  spring  to  flow  down  Gilmore  Creek  during 
the  irrigating  season  of  the  year,  and  one-half  thereof  during  the 
remaining  time.     This  appeal  is  from  the  judgment  so  entered. 

The  appellant  first  contends  that  the  court  erred  in  holding  that  Gil- 
more Creek  had  become  the  natural  channel  of  the  creek  flowing  from  the 


B.      Injunctive    Relief. 
1.      Generally. 

The  interest  in  and  right  to  the  wa- 
ters of  a  spring  with  sufficient  flow  to 
form  a  natural  stream  is  not  essentially 
different  from  the  interest  in  and  right- 
to  the  waters  of  any  other  natural 
stream.  And  the  interest  in  and  right 
to  waters,  while  usufructuary  in  charac- 
ter, is  a  property  right,  not  essentially 
different  in  its  nature  from  any  other 
property  right,  and  regulated,  controlled, 
and  protected  by  the  rules  of  law  and 
equity.  To  improperly  divert  or  un- 
reasonably obstruct  a  water  course  is  a 
private  nuisance  actionable  at  law.  The 
jurisdiction  of  equity  to  interfere  in  such 
cases  by  injunctive  relief,  to  prevent  the 
diversion  or  obstruction  or  the  contin- 
uance of  the  same  when  once  established, 
to  prevent  irreparable  damage,  and 
avoid  a  multiplicity  of  suits  at  law,  is 
clear  and  well  established,  the  remedy 
at  law  being  deemed  inadequate. 

United  States. — Yates  v.  Milwaukee, 
77  U.  S.  (10  Wall.)  497,  504,  19  L.  Ed. 
984,  986  (1870)  ;  Pumpelly  v.  Green  Bay 
Co.,  80  U.  S.  (13  Wall.)  166,  178,  20  L. 
Ed.  557,  560  (1871)  ;  Pine  v.  New  York, 
103  Fed.  337  (1900)  ;  California  P.  &  A. 
Co.  v.  Enterprise  C.  &  L.  Co.,  127  Fed. 
741    (1903). 

Alabama. — Stein  v.  Burden,  24  Ala. 
130,  60  Am.  Dec.  453  (1854);  Stein  v. 
Burden,  29  Ala.  127,  65  Am.  Dec.  394 
(1856)  ;  Ulbricht  v.  Eufaula  Water  Co., 
86  Ala.  587,  6  So.  78,  11  Am.  St.  Rep. 


72,  4  L.  R.  A.  572    (1888)  ;   Roberts  v. 
Vest,  126  Ala.  355,  28  So.  412  (1900). 

California. — Lux  v.  Haggin,  69  Cal. 
255,  10  Pac.  674  (1886);  Heilborn  v. 
Last  Chance  Ditch  Co.,  75  Cal.  117,  17 
Pac.  65  (1888);  Heilborn  v.  Fowler 
Switch  Canal  Co.,  75  Cal.  426,  17  Pac. 
535,  7  Am.  St.  Rep.  183  (1888);  Last 
Chance  Ditch  Co.  v.  Heilborn,  86  Cal.  1, 
26  Pac.  523  (1890)  ;  Walker  v.  Emerson, 
89  Cal.  456,  26  Pac.  968  (1891)  ;  South- 
ern Cal.  Imp.  Co.  v.  Wilshire,  144  Cal. 
68,  77  Pac.  767  (1904)  ;  Montecito  Val- 
ley Water  Co.  v.  Santa  Barbara,  144  Cal. 
578,  77  Pac.  1113  (1904);  Vestal  v. 
Young,  147  Cal.  715,  82  Pac.  381  (1905)  ; 
Huffner  v.  Sawday,  153  Cal.  86,  94  Pac. 
424    (1908). 

Connecticut. — Parker  v.  Griswold,  17 
Conn.  288,  42  Am.  Dec.  739  (1845); 
Harding  v.  Stanford  Water  Co.,  41  Conn. 
87  (1874)  ;  Adams  v.  Manning,  48  Conn. 
477  (1881)  ;  Williams  v.  Wadsworth,  51 
Conn.  277    (1883). 

Georgia. — St.  Amand  v.  Lehman,  120 
Ga.  253,  47  S.  E.  949   (1904). 

Indiana. — Dilling  v.  Murray,  6  Ind. 
324,  63  Am.  Dee.  385   (1855). 

Kansas. — City  of  Emporia  v.  Soden,  25 
Kan.  588,  37  Am.  Rep.  265  (1881); 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Long,  46 
Kan.  701,  27  Pac.  182,  26  Am.  St.  Rep. 
165  (1891);  Campbell  v.  Grimes,  62 
Kan.  503,   64  Pac.  62    (1901). 

Maine. — Blanchard  v.  Baker,  8  Me.  (8 
Greenl.)  253,  23  Am.  Dec.  504  (1832); 
Fernald  v.  Knox  Woolen  Co.,  82  Me.  48, 
19  Atl.  93,  7  L.  R  A.  459    (1889). 


1909] 


Hollett  v.  Davis. 


425 


spring,  and  that  the  respondents  had  acquired  the  rights  of  riparian 
proprietors  thereon,  calling  special  attention  to  the  statute  (Ballinger's 
Ann.  Codes  &  St.,  §  4114  [Pierce's  Code,  §  5829]),  which  gives  to  the 
owner  of  the  land  upon  which  a  spring  arises  the  use  of  the  waters 
flowing  therefrom,  provided  such  owner  can  use  the  water  upon  his  own 
premises.  With  regard  to  the  statute,  we  are  of  the  opinion  that  it  has  no 
application  to  a  spring  having  a  sufficient  flow  of  water  to  form  a  water 
course.  Such  a  stream  is  as  inseparably  annexed  to  the  soil  as  is  any 
other,  and  in  consequence  riparian  proprietors  thereon  have  the  right  to 
insist'  that   the    stream   be  permitted   to  flow    as  it  is  wont  to    flow  by 


Massachusetts. — Newhall  v.  Ireson,  62 
Mass.  (8  Cush.)  595,  54  Am.  Dec.  790 
(1851);  Elliot  v.  Fitchburg  R.  Co.,  64 
Mass.  (10  Cush.)  191,  57  Am.  Dee.  85 
(1852)  ;  Blood  v.  Nashua  &  L.  R.  Co.,  68 
Mass.  (2  Gray)  137,  61  Am.  Dec.  444 
(1854)  ;  Potter  v.  Howe,  141  Mass.  357, 
6  N.  E.  233   (1886). 

Michigan. — Dumont  v.  Kellogg,  29 
Mich.  420,  18  Am.  Rep.  102  (1874); 
Hilliker  v.  Coleman,  73  Mich.  170,  41  N. 
W.  219    (1889). 

Minnesota. — Dorman  v.  Ames,  12 
Minn.  451  (1866)  ;  Bennett  v.  Murtagh, 
20  Minn.  153   (1873). 

Mississippi. — Ferris  v.  Wellborn,  64 
Miss.  29,  8  So.  165    (1886). 

Nebraska. — Cline  v.  Stock,  71  Neb.  70, 
98  N.  W.  454  (1904),  102  N.  W.  265 
(1905). 

New  Hampshire. — Burnham  v.  Kemp- 
ton.  44  N.  H.  78,  100  (1962)  ;  Ranlet  v. 
Cook.  44  N.  H.  512,  84  Am.  Dec.  92 
(1865)  ;  Roberts  v.  Clermont  R.  &  L. 
Co.,  73  N.  H.  121,  59  Atl.  619   (1904). 

New  Jersey. — Lehigh  Valley  R.  Co.  v. 
Society  for  Establishing  U.  M.,  30  N.  J. 
Eq.  (3  Stew.)  145  (1878);  Spark  Mfg. 
Co.  v.  Newton,  160  N.  J.  Eq.  399,  45  Atl. 
596   (1899). 

New  York. — Olmstead  v.  Loomie,  9  N. 
Y.  424  (1854),  reversing  6  Barb.  (N.  Y.) 
152  (1849)  ;  Brown  v.  Bowen,  30  N.  Y. 
519.  86  Am.  Dec.  406  (1864)  ;  Pixley  v. 
Clark,  35  N.  Y.  520,  91  Am.  Dec.  72 
(1866);  Corning  v.  Troy  I.  &  N.  Fac- 
tory, 40  N.  Y.  191    (1869)  ;  Comstock  v, 


Colenson,   46  N.  Y.   615    (1871);   Mark- 
ham   v.    Stowe,    66   N.   Y.    574    (1876); 
Garwood  v.  New  York  Cent.  &  H.  River 
R.   Co.,  83  N.  Y.  400,  38  Am.  Rep.  452 
(1882);    Smith   v.   Rochester,   92   N.   Y. 
463,  44  Am.  Rep.  393    (1883);   Groat  v. 
Moak,  94  N.  Y.   115    (1883);    Mudge  v. 
Salisbury,  110  N.  Y.  413,  18  N.  E.  249 
(1888);      New     York     Rubber     Co.     v. 
Rothery,   132  N.  Y.   293,   30   N.  E.   841, 
28  Am.  St.  Rep.  575  (1892)  ;  Amsterdam 
Knitting  Co.  v.  Dean,  162  N.  Y.  278,  56 
N.  E.  757    (1900)  ;   Strobel  v.  Kerr  Salt 
Co.,   164  N.   Y.   303,   323,   21   Mor.   Min. 
Rep.  38,  58  N.  E.  142,  79  Am.  St.  Rep. 
643,  51  L.  R.  A.  687    (1900)  ;  Gallagher 
v.  Kingston  Water  Co.,  25  App.  Div.  82, 
49   N.   Y.   Supp.   250     (1898);     Penrhyn 
Slate  Co.  v.  Grandville,  E.  L.  &  P.  Co., 
84   App.   Div.   92,   82   N.  Y.    Supp.     547 
(1903);    Van    Hoesen    v.    Coventry,    10 
Barb.  518  (1851)  ;  Patterson  v.  Richards, 
22  Barb.   143    (1856);   Reid  v.   Grifford, 
Hopk.  Ch.  416    (1825);   People  v.  Piatt, 
17    Johns.    195,   211    (1819);    Hooker   v. 
Cummings,  20  Johns.  90,  11  Am.  Dec.  249 
(1822)  ;  Gardner  v.  Newbourgh,  2  Johns. 
Ch.  (N.  Y.)  161,  7  Am.  Dee.  526  (1816)  ; 
Samuels  v.  Armstrong,  46  Misc.  481,  93 
N.  Y.  Supp.  24  (1905)  ;  Varick  v.  Smith, 
5    Paige    Ch.     143,    28    Am.    Dec.    417 
(1835)  ;  Crooker  v.  Bragg,  10  Wend.  (N. 
Y.)  260,  25  Am.  Dec.  555   (1833). 

Oregon. — Weiss  v.  Oregon  Iron  &  S. 
Co.,  13  Or.  496,  11  Pax;.  255  (1886); 
Tucker  v.  Salem  Flouring-Mills  Co.,  15 
Or.  581,  16  Pae.  426  (1888);  Watts  v. 
Spencer,  51  Or.  262,  94  Pac  39    (1908) 


426 


Water  and  Mineral  Cases.         [Washington 


nature,  without  material  diminution  or  altering,  save  where  the  right  to 
divert  is  acquired  by  grant,  prescription,  or  prior  appropriation.  In  other 
words,  water  flowing  in  a  natural  water  course  which  arises  from  a 
spring  is  not  different  with  respect  to  the  rights  of  riparian  proprietors 
along  the  stream  than  is  water  flowing  through  such  a  course  arising 
from  any  other  source.  What  might  be  the  rights  of  parties  with  respect 
to  springs  which  do  not  create  a  water  course  we  are  not  called  upon  here 
to  decide,  and  do  not  decide,  but  with  streams  of  the  character  here  in 
question  we  hold  that  the  common-law  rule  relating  to  riparian  pro- 
prietors applies. 


Pennsylvania. — Wheatley  v.  Chrisman, 
24  Pa.  St.  298,  11  Mor.  Min.  Rep.  24,  64 
Am.  Dec.  657  (1855)  ;  Erie  Canal  Co.  v. 
Walker,  29  Pa.  St.  170  (1857);  Mes- 
singer's  App.,  109  Pa.  St.  285  (1885); 
Pennsylvania  R.  Co.  v.  Miller,  112  Pa. 
34,  3  Atl.  780   (1886). 

Rhode  Island. — Olney  v.  Fenner,  2  R. 
I.  211,  57  Am.  Dec.  711   (1852). 

South  Carolina. — Royster  Guano  Co.  v. 
Fowles,  75  S.  C.  434,  56  S.  E.  11   (1906). 

Tennessee. — Webster  v.  Harris,  111 
Tenn.  668,  69  S.  W.  782,  59  L.  R,  A.  324 
(1902).         , 

Texas. — Armendaiz  v.  Stillman,  67 
Tex.  458,  3  S.  W.  678  (1887);  Santa 
Rosa  Irr.  Co.  v.  Pecos  River  Irr.  Co. 
(Tex.  Civ.  App.  Jan.  3,  1906),  92  S.  W. 
1014. 

Utah. — Crescent  Min.  Co.  v.  Silver 
King  Min.  Co.,  17  Utah  444,  468,  54  Pac. 
244,  70  Am.  St.  Rep.  810  (1898). 

Vermont. — Lyon  v.  McLaughlin,  32  Vt. 
423  (1859);  Fairhaven  Marble  Co.  v. 
Adams,  46  Vt.  496  (1874);  Sanborn  v. 
Barley,  47  Vt.  170   (1873). 

Virginia. — Hanna  v.  Clarke,  31  Gratt. 
(Va.)  36  (1878);  Leonard  v.  St.  John, 
101  Va.  752,  45  S.  E.  474   (1903). 

West  Virginia. — Chesapeake  R.  Co.  v. 
Bobbett,  5  W.  Va.  138  (1872). 

Wisconsin. — Clark  v.  Stewart,  96  Wis. 
154,  14  N.  W.  54  (1882);  Lawson  v. 
Menasha  Wooden-Ware  Co.,  59  Wis.  393, 
18  N.  W.  440,  48  Am.  Rep.  528    (1884). 

Equity  has  jurisdiction  where  irrep- 
arable injury  is  result  of  the  obstruct- 
ion or  diversion  of  water.     Ulbricht  v. 


Eufaula  Water  Co.,  86  Ala.  587,  6  So. 
78,  11  Am.  St.  Rep.  72,  4  L.  R.  A.  572 
(1888)  ;  Strait  v.  Brown,  16  Nev.  317,  40 
Am.  Rep.  479  (1881).  See  Burden  v. 
Stein,  27  Ala.  104,  52  Am.  Dec.  758 
(1855)  ;  Olmstead  v.  Loomie,  9  N.  Y.  428 
(1854),  reversing  6  Barb.  152  (1849); 
Coming  v.  Troy  I.  &  N.  Factory,  40  N.  Y. 
191,  207  (18G9);  Gardner  v.  Newburgh, 
2  Johns.  Ch.  (N.  Y.)  161,  7  Am.  Dec. 
526  (1816)  ;  Pumpelly  v.  Green  Bay  Co., 
80  U.  S.  (13  Wall)  166,  178,  20  L,  Ed. 
557,  560   (1870). 

Thus,  where  a  person  had  an  easement 
or  grant  of  privilege  to  draw  water  from 
a  spring  on  property  of  another,  through 
a  pipe  of  designated  diameter,  he  was  en- 
joined from  using  a  larger  pipe  and  tak- 
ing more  water.  Markham  v.  Stowe,  66 
N.  Y.  574  (1876). 

Where  a  railroad  company,  in  the  con- 
struction of  its  road  across  a  natural 
water  course,  covers  up  a  spring  from 
which  a  part  of  the  supply  of  water  is- 
sues, building  a  large  embankment,  and 
by  other  means  totally  diverts  the  waters 
from  the  land  of  a  person  through  whose 
land  the  water  naturally  flowed  before 
the  construction  of  the  road,  such  per- 
son is  entitled  to  a  mandatory  injunc- 
tion against  the  railroad  company. 
Atchison  T.  &  S.  F.  R.  Co.  v.  Long,  46 
Kan.  701,  27  Pac.  182,  26  Am.  St.  Rep. 
169    (1891). 

2.      Joinder  of  Parties  Plaintiff. 

Right  of  parties  injured  to  unite  as 
plaintiffs  in  action.     See  Scofield  v.  Lan- 


1909] 


Hollett  v.  Davis. 


427 


It  becomes,  therefore,  material  to  inquire  what  rights  the  respondents 
have  to  the  stream  in  question  considered  as  riparian  proprietors.  It 
is  said  by  the  appellant  that  since  the  channel  in  which  the  spring  now 
flows  is  artificial  with  respect  to  the  waters  of  the  spring,  the  respondents 
must  base  their  denial  of  the  right  of  the  appellant  to  return  it  to  its 
original  channel  upon  one  or  both  of  two  grounds,  namely,  that  they 
have  acquired  a  right  by  prescription  to  have  the  water  flow  through  this 
channel,  or  that  the  appellant  is  now  estopped  to  assert  the  right  to 
return  the  water  to  its  natural  channel ;  and  he  argues  that  respondents 
have  no  right  by  prescription,  and  are  in  no  position  to  urge  an  estoppel 


sing,  17  Mich.  437,  444  (1868)  ;  Middle- 
ton  v.  Flat  Fork  B.  Co.,  27  Mich.  533 
(1873)  ;  Watkins  v.  Peck,  13  N.  H.  360, 
40  Am.  Dec.  156  (1843);  Simar  v. 
Canady,  53  N.  Y.  298,  13  Am.  Rep.  523 
(1873);  Murray  v.  Hay,  1  Barb.  Ch. 
(N.  Y.)  59,  43  Am.  Dec.  773  (1845); 
Reid  v.  Gifford,  1  Hopk.  Ch.  (N.  Y.)  416 
(1825);  Williams  v.  County  Court,  26 
W.  Va.  488,  53  Am.  Rep.  94   (1885). 

3.      Estoppel  by  Delay. 

Any  delay  in  bringing  suit  short  of 
statutory  period  of  limitation  will  not 
estop  a  proprietor  who  is  injuriously 
affected  from  maintaining  suit  for  in- 
junction. California  P.  &  A.  Co.  v.  En- 
terprise C.  &  L.  Co.,  127  Fed.  741  (1903), 
following  Lux  v.  Haggin,  69  Cal.  256, 
391,  10  Pac.  674  (1886),  and  distinguish- 
ing Curtiss  v.  La  Grande  Hydraulic 
Water  Co.,  20  Or.  34,  23  Pac.  808,  25 
Pac.  378,  10  L.  R.  A.  484  (1890).  See 
Williams  v.  Wadsworth,  51  Conn.  277 
(1883). 

Thus,  it  has  been  held  that  where  the 
owner  of  the  premises  on  which  a  spring 
arises  wrongfully  appropriates  it  to  in- 
jury of  a  lower  proprietor,  the  injury  is 
continuous,  and  is  not  referable  to  the 
date  on  which  the  original  wrong  was 
committed,  and  the  fact  that  the  date  of 
the  original  wrong  is  beyond  the  statute 
of  limitations  will  not  prevent  a  recovery 
of  damages  which  have  occurred  within 
the  statute  of  limitations.  Colrick  v. 
Swinburne,  105  N.  Y.  503,  12  N.  E.  427 
(1&87).     See  Arnold  v.  Hudson  River  R. 


Co.,  55  N.  Y.  662  (1874),  reversing  49 
Barb.  108  (1867)  ;  Uline  v.  New  York  C. 
&  H.  River  R.  Co.,  101  N.  Y.  98,  4  N.  E. 
536,  54  Am.  Rep.  661  (1886)  ;  Waggoner 
v.  Jermaine,  3  Denio.  (N.  Y.)  306 
(1846);  Thayer  v.  Brooks,  17  Ohio  489, 
49  Am.  Dec.  474  (1848);  Bare  v.  Hoff- 
man, 79  Pa.  St.  71,  21  Am.  Rep.  42 
(1875). 

4.      When  Granted. 

Injunction  is  a  preventive  remedy,  not 
given  for  past  injury,  but  for  prevention 
of  continuance  only.  Cobb  v.  Smith,  16 
Wis.  692  (1863);  Lawson  v.  Menasha 
Wooden-Ware  Co.,  59  Wis.  393,  18  N.  W. 
440,  48  Am.  Rep.  528   (1884). 

Injunction  against  diversion  of  water 
will  not  be  granted  where  no  diversion  is 
shown.  Last  Chance  Ditch  Co.  v.  Heil- 
born,  86  Cal.   1,  26  Pac.  523    (1890). 

It  is  not  every  injury  or  invasion  of 
right  in  water  that  will  entitle  proprie- 
tor to  maintain  action  for  injunction. 
See  Dilling  v.  Murray,  6  Ind.  324,  63  Am. 
Dec.  385  (1855)  ;  Elliot  v.  Fitchburg  R. 
Co.,  64  Mass.  (10  Cush.)  191,  57  Am. 
Dec.  85  (1852);  Palmer  v.  Mulligan,  3 
Cai.  (N.  Y.)  307,  2  Am.  Dec.  270  (1855 
— Kent,  C.  J.,  and  Thompson,  J.,  dissent- 
ing). But  compare,  Blood  v.  Nashua  & 
L.  R.  Co.,  68  Mass.  (2  Gray)  137,  61 
Am.  Dec.  444  (1857). 

Mandatory  injunction  issues  only  when 
a  court  of  law  cannot  grant  adequate  re- 
lief, or  where  full  compensation  cannot 
be  made  in  pecuniary  damages.  Atchi- 
son, T.  &  S.  F.  R.  Co.  v.  Long,  40  Kan. 


428 


Water  and  Mineral  Cases.  [Washington 


against  him.  In  regard  to  these  contentions,  we  agree  with  the  appellant 
that  the  respondents  have  no  right  by  prescription  based  on  their  own 
use  of  the  water,  as  it  is  clear  there  has  been  no  such  continuous  use 
for  the  statutory  period  as  would  ripen  into  such  a  right;  but  we  think 
they  can  successfully  urge  an  estoppel.  The  appellant  and  his  prede- 
cessors in  interest  have  made  this  the  channel  for  the  overflow  of  the 
spring  for  more  than  thirty  years.  The  respondents,  relying  on  its  con- 
tinued flow  therein,  have  acquired  the  land  bordering  on  the  stream  and 
made  valuable  improvements  thereon,  which  will  become  valueless  if  the 
water  is  now  returned  to  its  original  channel.  Equity  and  good  conscience 


701,   27   Pac.   182,   26  Am.   St.   Rep.   1G5 

(1891).      . 

The  mere  fact  that  a  legal  remedy  ex- 
ists will  not  be  a  bar  to  equitable  inter- 
ference where  it  would  be  more  adequate, 
comprehensive,  and  effectual.  See  Bemis 
v.    Upham,    30    Mass.     (13     Pick.)      169 

(1832);  Boston  W.  P.  Co.  v.  Boston  & 
W.  R.  Co.,  33  Mass.  (16  Pick.)  512, 
521  (1835);  Ballou  v.  Hopkinton,  70 
Mass.  (4  Gray)  324,  328  (1S55);  Law- 
son  v.  Menasha  Wooden-Ware  Co.,  59 
Wis.  393,  18  N.  W.  440,  48  Am.  Rep. 
528    (1884). 

In  those  cases,  however,  where  the 
proprietor  is  taking  no  advantage  of  his 
usufructuary  right,  but  allows  the  water 
to  flow  unutilized,  and  it  appears  to  be 
of  no  special  value  to  him  at  the  time,  he 
will  not  be  permitted  to  call  for  equitable 
interference  in  his  behalf  further  than  to 
vindicate  his  right  and  to  prevent  a  loss 
of  it  by  adverse  user  and  lapse  of  time. 
A  court  of  equity  will  exercise  its  discre- 
tion in  such  cases,  not  to  interfere  by  in- 
junction, but  leave  the  party  to  remedy 
at  law.  Ulbricht  v.  Eufaula  Water  Co., 
86  Ala.  587,  6  So.  78,  11  Am.  St.  Rep.  72,  4 
L.  R.  A.  572  (1888);  Corning  v.  Troy 
I.    &    N.    Factory,    40    N.    Y.    207,    220 

(1S69);  Clinton  v.  Meyers,  64  N.  Y. 
511,  7  Am.  Rep.  373  (1871);  Smith  v. 
City  of  Rochester,  92  N.  Y.  463,  44  Am. 
Rep.  393   (1883). 

5.      Proof  of   Damages. 

The  riparian  proprietor  must  show 
perceptible  damages.    Elliot  v.  Fitchburg 


R.  Co.,  64  Mass.  (10  Cush.)  191,  27  Am. 
Dec.  85  (1852).  See  Blanchard  v.  Baker, 
8  Me.  (8  Greenl.)  253,  23  Am.  Dec.  504, 
(1832);  Anthony  v.  Lapham,  22  Mass. 
(5  Pick.)  175  (1827);  Van  Hoesen  v. 
Coventry,  10  Barb.  (N.  Y.)  518  (1851)  ; 
Tyler  v.  Wilkinson,  4  Mason,  397,  Fed. 
Cas.  No.  14,312  (1827);  Webb  v.  Port- 
land Mfg.  Co.,  3  Sumn.  189,  Fed.  Cas.  No. 
17,322    (1838). 

Injunction  may  be  maintained  al- 
though proprietor  sustains  no  present 
damage,  where  the  injury  is  of  such  a 
nature  that  it  is  continuous  and  may 
ripen  into  right  or  title.  Vestal  v. 
Young,  147  Cal.  715,  82  Pac.  816  (1905)  ; 
Newhall  v.  Ireson,  62  Mass.  (8  Cush.) 
595,  54  Am.  Dec.  790  (1851);  Lund  v. 
New  Bedford,  121  Mass.  286,  290  (1876)  ; 
Garwood  v.  New  York  Cent.  &  H.  River 
R.  Co.,  83  N.  Y.  400,  38  Am.  Rep.  452 
(18S0);  Lawson  v.  Menasha  Wooden- 
Ware  Co.,  59  Wis.  393,  18  N.  W.  440,  48 
Am.  Rep.  528  (1884)  ;  Webb  v.  Portland 
Mfg.  Co.,  3  Sumn.  189,  Fed.  Cas.  No. 
17,322  (1838).  See  Moore  v.  Clear  Lake 
Water  Co.,  68  Cal.  146,  8  Pac.  816 
(1885)  ;  Conkling  v.  People,  87  Cal.  296, 
25  Pac.  399  (1890)  ;  Walker  v.  Emerson, 
89  Cal.  456,  26  Pac.  968  (1891)  ;  Ewing 
v.  Mott,  90  Cal.  231,  27  Pac.  194 
(1891)  ;  Henne  v.  Lankershim,  146  Cal. 
70,  79  Pac.  591    (1905). 

A  proprietor  is  entitled  to  damages  for 
any  disturbance  of  his  right,  without 
proof  of  actual  damage.  It  is  the  in- 
vasion of  the  right  which  gives  the  ac- 
tion;    and    the    law    in    the   absence     of 


1909] 


Hollett  v.  Davis. 


429 


therefore  require  that  the  artificial  channel  be  regarded  as  the  natural 
channel,  and  the  plaintiff  should  not  be  permitted  to  assert  the  contrary 
for  his  own  benefit  and  the  respondents'  injury.  The  rule  governing 
such  cases  is  well  stated  by  this  court  in  the  case  of  Matheson  v.  Ward, 
24  Wash.  407,  64  Pac.  520,  85  Am.  St.  Rep.  955.  In  that  case  it  was 
made  to  appear  that  the  Dungeness  River  some  four  miles  south  of  its 
mouth  originally  divided  into  three  channels,  the  east  channel,  known 
as  "Hurd's  Creek  Channel,"  the  center  or  main  channel,  known  as  the 
"East  Channel,"  and  the  one  further  west,  known  as  the  "West  Chan- 
nel." Some  time  prior  to  the  year  1865,  some  person  built  a  wing  dam 
across  the  West  Channel,  which  had  the  effect  of  diverting  all  the  water 


evidence  of  special  injury,  gives  nominal 
damages  on  the  ground  that  the  undis- 
turbed enjoyment  and  continuance  of 
such  wrongful  action  without  the  consent 
of  the  complaining  proprietor  would 
ripen  into  evidence  of  the  right  to  do  the 
act  complained  of  and  becomes  the  foun- 
dation of  adverse  right  or  title. 

United  States. — Webb  v.  Portland 
Mfg.  Co.,  3  Sumn.  189;  Fed.  Cas.  No. 
17,322   (1838). 

Alabama. — Stein  v.  Burden,  24  Ala. 
130,  60  Am.  Dec.  453  (1854),  27  Ala. 
104,  62  Am.  Dec.  758  (1855),  and  29 
Ala.  127,  65  Am.  Dec.  394  (185G);  Ul- 
bricht  v.  Eufaula  Water  Co.,  80  Ala. 
587,  6  So.  78,  11  Am.  St.  Rep.  72,  4  L.  R. 
A.  572    (1888). 

California. — Parke  v.  Kilham,  8  Cal. 
77,  4  Mor.  Min.  Rep.  522,  68  Am.  Dee. 
310  (1857);  Ferrea  v.  Knipe,  28  Cal. 
340,  87  Am.  Dec.  128  (1865)  ;  Moore  v. 
Clear  Lake  W.  W.,  68  Cal.  146,  8  Pac. 
816  (18S5)  ;  Lux  v.  Haggin,  69  Cal.  255, 
10  Pac.  674  (1886)  ;  Stanford  v.  Felt,  71 
Cal.  249,  16  Pac.  900  (1886);  Heilborn 
v.  Fowler  Switch  Canal  Co.,  75  Cal.  426, 
17  Pac.  535,  7  Am.  St.  Rep.  183   (1888). 

Connecticut. — Parker  v.  Griswold,  17 
Conn.  288,  42  Am.  Dec.  739    (1845). 

Maine. — Blanchard  v.  Baker,  8  Me.  (8 
Greenl.)   253,  23  Am.  Dec.  504   (1S32). 

Massachusetts.  —  Bliss  v.  Rice,  34 
Mass.  (17  Pick.)  23  (1835);  Newhall  v. 
Ireson,  62  Mass.  (8  Cush.)  595,  54  Am. 
Dec.  790  (1851). 


New  York. — Crooker  v.  Bragg,  10 
Wend.  (N.  Y.)  260,  25  Am.  Dec.  555 
(1833). 

Pennsylvania. — Ripka  v.  Sergeant,  7 
Wats.  &  S.  (Pa.)  9,  42  Am.  Dec.  214 
(1844). 

This  doctrine  is  based  upon  two 
grounds :  ( 1 )  that  every  injury,  from 
its  very  nature,  legally  implies  to  dam- 
age; and,  (2)  that  any  injury  to  a  right 
is  a  damage  to  person  entitled  to  that 
right,  by  jeopardizing  its  continuance 
and  leading  to  its  very  destruction. 
Parker  v.  Griswold,  17  Conn.  288,  42 
Am.   Dec.   739    (1845). 

6.      Nominal    Damages. 

In  an  action  to  restrain  diversion  of 
waters  and  for  damages,  courts  may 
grant  injunction  though  only  nominal 
damages  are  shown.  Fischer  v.  Trustees 
Village  of  Clifton  Springs,  121  N.  Y. 
Supp.  163  (1909);  Amsterdam  Knitting 
Co.  v.  Dean,  162  N.  Y.  278,  56  N.  E.  757 
(1900)  ;  Samuels  v.  Armstrong,  46  Misc. 
(N.  Y.)   481,  93  N.  Y.  Supp.  24   (1905). 

Right  to  injunction  to  restrain  diver- 
sion exists  independently  of  the  fact  that 
the  injury  of  the  diversion  is  large  in 
amount  or  serious  in  character.  Pine  v. 
New  York,  103  Fed.  337  (1900).  See 
Legg  v.  Horn,  45  Conn.  409  (1878)  ;  Dor- 
man  v.  Ames,  12  Minn.  151  (1866); 
Corning  v.  Troy  I.  &  N.  Factory,  40  N. 
Y.  191  (1869);  Gilzinger  v.  Saugerties 
Water  Co.,  142  N.  Y.  633,  37  N.  E.  566 


430 


Watee  and  Mineral  Cases.         [Washington 


of  the  stream  into  the  East  Channel  and  Hurd's  Creek  Channel.  In 
1895,  after  the  water  had  been  confined  to  the  East  and  Hurd's  Channels 
for  nearly  thirty  years,  certain  persons  living  along  these  channels  again 
opened  up  the  West  Channel,  and  dammed  the  others,  so  as  to  divert 
almost  the  entire  flow  of  the  river  into  the  West  Channel.  In  1900  owners 
of  land  along  the  West  Channel  attempted  to  again  confine  the  waters  to 
the  East  and  Hurd's  Channels,  when  the  persons  who  had  diverted  it  in 
1895  brought  an  action  to  restrain  them  from  so  doing.  The  trial  court 
denied  the  injunction,  and  its  judgment  was  affirmed  in  this  court.  In 
the   course   of   the   opinion   we   said :      "Much    evidence   is   quoted   by 


(1894)  ;  affirming  66  Hun  171,  21  N.  Y. 
Sup.  121  (1892);  Amsterdam  Knitting 
Co.  v.  Dean,  162  N.  Y.  278,  56  N.  E.  757 
(1900). 

Although  injury  to  riparian  owner  by 
invasion  of  his  right  is  slight  or  trifling, 
he  is  entitled  to  injunction  restricting 
diversion  of  water.  Penrhyn  Slate  Co.  v. 
Grandville  E.  L.  &  P.  Co.,  84  App.  Div. 
(N.  Y.)  92,  82  N.  Y.  Sup.  547  (1903). 
See  Corning  v.  Troy  I.  &  N.  Co.,  40  N.  Y. 
191  (1869);  Smith  v.  Rochester,  92  N. 
Y.  463,  44  Am.  Rep.  393  (1883);  New 
York  Rubber  Co.  v.  Rothery,  132  N.  Y. 
293,  30  N.  E.  841,  28  Am.  St.  Rep.  575 
(1892);  Amsterdam  Knitting  Co.  v. 
Dean,  162  N.  Y.  278,  56  N.  E.  757 
(1900);  Strobel  v.  Kerr  Salt  Co.,  164 
N.  Y.  303,  323,  21  Mor.  Min.  Rep.  38,  58 
N.  E.  142,  79  Am.  St.  Rep.  643,  51  L.  R. 
A.  687    (1900). 

In  the  absence  of  any  showing  that 
special  damages  have  been  sustained  or 
suffered,  where  a  right  is  invaded  or 
threatened,  the  party  injured  will  be  en- 
titled to  recover  nominal  damages  as 
well  as  have  injunctive  relief,  on  the 
ground  that  the  undisturbed  enjoyment. 
or  continuation  of  acts  complained  of 
without  the  consent  of  the  owner,  would 
ripen  into  evidence  of  a  right  to  do  them. 
Stein  v.  Burden,  24  Ala.  130,  60  Am. 
Dec.  453  (1854),  27  Ala.  104,  62  Am. 
Dec  758  (1855),  29  Ala.  127,  65  Am. 
Dec.  394  (1856);  Ulbricht  v.  Eufaula 
Water  Co.,  86  Ala.  587,  1  So.  78,  11  Am. 
St.  Rep.  72,  4  L.  R.  A.  572  (1888); 
Parke  v.  Kilham,  8  Cal.  77,  4  Mor.  Min. 


Rep.  522,  68  Am.  Dec.  310  (1857); 
Ferrea  v.  Knipe,  28  Cal.  340,  87 
Am.  Dec.  128  (1865);  Moore  v. 
Clear  Lake  W.  W.,  68  Cal.  146, 
8  Pac.  816  (1885);  Lux  v.  Haggin,  69 
Cal.  255,  10  Pac.  674  (1886);  Stanford 
v.  Felt,  71  Cal.  249,  16  Pac.  900  (1886)  ; 
Heilborn  v.  Fowler  Switch  Canal  Co.,  75 
Cal.  426,  17  Pac.  535,  7  Am.  St.  Rep.  183 
(1888);  Newhall  v.  Ireson,  62  Mass.  (8 
Cush.)  595,  54  Am.  Dec.  790  (1851). 
This  doctrine  is  based  upon  two  grounds : 
(1)  that  every  injury,  from  its  very  na- 
ture, legally  implies  damage;  and,  (2) 
that  an  injury  to  a  right  is  a  damage  to 
■the  person  entitled  to  that  right,  by 
jeopardizing  its  continuance  and  leading 
to  its  very  destruction.  Parker  v.  Gris- 
wold,  17  Conn.  288,  42  Am.  Dec.  739 
(1845). 

7.      Damages  Incapable  of  Ascertain- 
ment. 

A  proprietor  is  entitled  to  injunction 
although  the  injury  caused  by  diversion 
is  incapable  of  ascertainment,  or  of  a 
nature  that  cannot  be  computed  by  any 
pecuniary  standard.  Heilborn  v.  Fowler 
Switch  Canal  Co.,  75  Cal.  426,  17  Pac. 
535,  7  Am.  St.  Rep.  183  (1888).  See 
Parke  v.  Kilham,  8  Cal.  77,  4  Mor. 
Min.  Rep.  522,  68  Am.  Dec.  310  (1857)  ; 
Ferrea  v.  Knipe,  28  Cal.  340,  87  Am. 
Dec.  128  (1865);  Moore  v.  Clear  Lake 
W.  W.,  68  Cal.  146,  8  Pac.  816  (1885)  ; 
Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674 
(1886)  ;  Stanford  v.  Felt,  71  Cal.  249,  16 
Pac.  900     (1886);     Wilson    v.    Mineral 


1909] 


Hollett  v.  Davis. 


431 


appellants  in  their  brief  to  the  effect  that  many  years  ago  there  was  a 
natural  channel  in  the  west,  and  that  one  Le  Balister,  in  1865,  closed 
up  this  channel  by  a  dam,  and  that  thereafter  it  filled  up  by  sediment 
and  brush,  and  no  water  ran  through  it  at  low  and  ordinary  high  water. 
Conceding  this  to  be  true,  viz.,  that  prior  to  1865  it  was  a  natural  channel, 
although  the  evidence  is  conflicting  upon  this  point,  the  admissions  already 
stated  make  the  determination  of  the  question  one  of  law  for  the  court, 
rather  than  one  of  fact.  Even  if  the  West  Channel  was  a  natural  channel 
prior  to  1865,  and  was  then  dammed  up,  and  the  water  diverted  to  the 
East  and  Hurd's  Creek  Channels,  where  it  was  confined  for  thirty  years, 


Point,  39  Wis.  160  (1875);  Lawson  v. 
Menasha  Wooden-Ware  Co.,  59  Wis.  393, 
18  N.  W.  440,  48  Am.  Rep.  528  (1884) . 

The  right  to  an  injunction  does  not  de- 
pend upon  the  existence  of  damages 
measured  by  money  standard;  the  maxim 
de  minimis  does  not  apply.  Learned  v. 
Castle,  78  Cal.  454,  18  Pac.  872,  21  Pac. 
11  (1889);  Walker  v.  Emerson,  89  Cal. 
456,  26  Pac.  968   (1891). 

Where  a  right  is  invaded  or  threaten- 
ed, which  invasion  is  necessarily  to  be 
operative  prospectively,  and  the  existence 
of  injuries  is  contingent  and  doubtful  of 
ascertainment,  a  preliminary  injunction 
is  the  appropriate  remedy.  Lyon  v.  Mc- 
Laughlin, 32  N.  H.  423   (1859). 

8.  Damages  Presumed  from  Invasion 
of  Right. 
Damage  is  presumed  from  diversion; 
otherwise,  before  a  party  might  be  able 
to  prove  actual  damage,  the  wrongdoer 
might  acquire  right  by  prescription  or 
upon  presumption  of  grant.  Thus  an  in- 
jury is  likely  to  ensue  from  such  an 
invasion  of  right  which  is  sufficient 
damage  to  sustain  an  action  for  the  re- 
covery of  nominal  damages  at  least,  and 
so  establish  plaintiff's  right.  Plumleigh 
v.  Dawson,  6  111.  (1  Gilm.)  544,  41  Am. 
Dec.  199  (1844).  See  Webb  v.  Portland 
Mfg.  Co.,  3  Sumn.  189,  Fed.  Cas.  No. 
17,322  (1838);  Parker  v.  Griswold,  17 
Conn.  288,  42  Am.  Dec.  739  (1845); 
Blanchard  v.  Baker,  8  Me.  (8  Greenl.) 
253,  23  Am.  Dec.  504    (1832);   China  v. 


Southwick,  12  Me.  238  (1835);  Bolivar 
Mfg.  Co.  v.  Neponset  Mfg.  Co.,  33  Mass. 
(16  Pick.)  241  (1834);  Garwood  v.  N. 
Y.  Cent.  &  H.  River  R.  Co.,  83  N.  Y.  400, 
38  Am.  Rep.  452,  (1880 — distinguishing 
on  this  point  Elliot  v.  Fitchburg  R.  Co., 
64  Mass.,  10  Cush.,  191,  57  Am.  Dec.  85— 
1852)  ;  Gardner  v.  Newburgh,  2  John. 
Ch.  (N.  Y.)  162,  7  Am.  Dec.  526  (1816)  ; 
Crooker  v.  Bragg,  10  Wend.  (N.  Y.)  260, 
25  Am.  Dec.  555  (1833);  Pastorius  v. 
Fisher,  1  Rawle.    (Pa.)    27    (1828). 

9.      Decreeing  Damages  by  Decree  of 
Injunction. 

Equity  will  not  do  justice  by  halves, 
but  will  render  full  and  complete  relief 
in  determining  the  rights  of  the  parties 
within  the  scope  of  pleadings.  Royster 
Guano  Co.  v.  Fowles,  75  S.  C.  434,  56  S. 
E.  11    (1906).     See  Phillips  v.  Anthony, 

47  S.  C.  463,  25  S.  E.  294  (1896)  ;  Butler 
v.  Butler,  67  S.  C.  212,  45  S.  E.  184 
(1903);  Hanna  v.  Clarke,  31  Grat. 
(Va.)    36   (1878). 

A  court  of  equity  has  power  by  decree 
to  ascertain  and  order  payment  of  dam- 
ages by  decree  of  injunction.  Pine  v. 
New  York,  103  Fed.  337  (1900).  See 
Ferris  v.  Dudley,  78  Ala.  124,  56  Am. 
Rep.  23  (1884);  Roberts  v.  Vest,  126 
Ala.  355,  28  So.  412  (1900)  ;  Stowers  v. 
Gilbert,  156  N.  Y.  600,  51  N.  E.  282 
(1898)  ;  Stadler  v.  Grieben,  61  Wis.  500, 
21  N.  W.  629  (1894)  ;  Lake  Hotel  Co.  v. 
Cedar  Creek  Hydraulic  Co.,  79  Wis.  297, 

48  N.  W.  371   (1891). 


432 


Water  and  Mineral  Cases.  [Washington 


and  this  flow  was  acquiesced  in  by  the  riparian  owners  and  others  along 
the  channels  of  said  river,  this  would  make  the  East  and  Hurd's  Creek 
the  natural  channels ;  and  defendants  and  others  purchasing  and  improv- 
ing lands  along  the  old  channel,  and  relying  upon  the  flow  continuing 
in  the  channels  thereby  formed,  could  not  now  have  their  lands  damaged 
by  reason  of  the  water  being  turned  back  by  artificial  means  after  that 
lapse  of  time.  After  the  lapse  of  thirty  years  the  channels  known  as  the 
'East'  and  'Hurd's  Creek'  became  natural  channels  and  the  attempt  of 
riparian  or  other  owners  to  change  the  flow  at  this  late  day  to  the  injury 
of  persons  on  the  old  channel  would  be  unlawful.  According  to  the 
evidence,  it  is  probably  true  that  in  the  year  1865,  one  Le  Balister,  by 
means  of  a  dam  or  embankment,  changed  the  flow  of  water  out  of  the 
West  Channel.  Conceding  it  to  be  so  the  acquiescence  by  plaintiffs  and 
their  grantors  and  all  riparian  owners  below  the  point  of  divergence  for 


IV.      Artificial      Channels      Becoming 
Natural   Channels. 

A.      As  to,  Generally. 

In  the  principal  case  there  was  a 
changing  of  the  natural  flow  of  the 
water  to  an  entirely  new  course  by  means 
of  an  artificial  channel.  The  fact  that 
the  source  of  the  water  forming  the 
stream  thus  diverted  into  a  new  course 
originated  in  a  spring  on  the  premises  of 
the  diverting  proprietor  is  of  no  signifi- 
cance. The  general  rules  of  law  relating 
to  the  diversion  of  streams  is  applicable; 
and  the  question  involved  is  as  to  when, 
in  law,  the  artificial  channel  is  regarded 
as  the  natural  channel  of  the  stream, 
carrying  all  the  rights  and  interests  at- 
taching to  and  adhering  in  a  natural  per- 
manent stream. 

Riparian  rights  do  not  usually  attach 
to  artificial  channels.  Fox  River  F.  & 
P.  Co.  v.  Kelly,  70  Wis.  298,  35  N.  W.. 
542  (1887)  ;  Ligare  v.  Chicago,  M.  &  N. 
R.  Co.,  166  111.  249,  46  N.  E.  803  (1897). 
Adverse  use  of  water  flowing  through  an 
artificial  channel  for  a  period  of  twenty 
years  is  presumptive  evidence  of  a  grant 
to  use  the  same.  Watkins  v.  Peck,  13 
N.  H.  360,  40  Am.  Dec.  156  (1843). 
This  is  on  the  ground  that  such  right  is 
an  easement,  and  that  an  easement  may 
be  acquired  by  prescription.     See  John- 


son v.  Jordan,  43  Mass.  (2  Mete.)  234, 
37  Am.  Dec.  85  (1841);  Worrall  v. 
Rhoades,  2  Whart.  (Pa.)  427,  30  Am.  Dec. 
274  (1837);  Simms  v.  Davis,  1  Cheves 
(S.  C.)  L.  1,  34  Am.  Dec.  581  (1839). 
But  it  has  been  held  that  while  the  right 
to  the  use  of  water  flowing  in  an  ar- 
tificial channel  may  be  acquired  by  pre- 
scription, no  correlative  right  can  there- 
by be  acquired  so  that  the  one  benefited 
by  the  discharge  of  the  water  can  insist 
on  its  continuance.  Norton  v.  Volentine, 
14  Vt.  246,  39  Am.  Dec.  220    (1842). 

An  artificial  channel  or  ditch  con- 
structed by  landowners  to  carry  off  the 
waters  from  heavy  rains  and  melting 
snows,  is  not  a  water  course.  New  Jer- 
sey I.  &  I.  R.  Co.  v.  Tutt,  168  Ind.  205, 
80  N.  E.  420  (1907)  ;  Burton  v.  Jenson, 
9  Ohio  Dec.  120,  11  Cen.  L.  Bui.  26; 
Lawton  v.  South  Bound  R.  Co.,  61  S.  C. 
548,  554,  39  S.  E.  752  (1901)  ;  Fryer  v. 
Warne,  29  Wis.  511,  515  (1872).  And 
cannot  be  invested  with  the  charac- 
teristics of  a  natural  water  course  by  any 
lapse  of  time.  Lawton  v.  South  Bound 
R.  Co.,  61  S.  C.  548,  554,  39  S.  E.  752 
(1901). 

An  artificial  sluiceway  over  reclaimed 
flats,  along  which  the  tide  ebbs  and  flows, 
is  not  a  water  course  within  the  meaning 
of  the  law.  Water  may  flow  into  it  and 
flow  out  again,  but  it  does  not  therein 


1909] 


Hollett  v.  Davis. 


433 


a  period  of  thirty  years  has  now  lost  them  the  right  to  change  the  flow 
from  the  new  into  the  old  channel."  To  the  same  effect  is  Shepardson 
v.  Perkins,  58  N.  H.  354,  where  the  court  used  the  following  language : 
"If  the  landowner,  having  changed  the  direction  of  the  natural  stream 
through  his  land,  were  to  suffer  others  who  are  entitled  to  use  the  water 
to  expend  money  in  reference  to  such  use,  under  a  belief  that  the  new 
channel  was  to  be  permanent,  and  this  were  known  to  him,  he  could  not 
afterwards  change  its  course  so  as  to  injure  the  party  who  had  expended 
his  money.  In  these  and  like  cases,  whenever  one  who  owns  a  water 
course  in  which  another  is  interested,  or  by  the  use  of  which  another 
is  affected,  does  any  act  or  suffers  any  act  to  be  done  affecting  the  rights 
of  other  proprietors,  whereby  a  state  of  things  is  created  which  he  cannot 
change  without  materially  injuring  another  who  has  been  led  to  act  by 
what  he  himself  had  done  or  permitted,  the  court  applies  the  doctrine  of 


pursue  a  course.  There  is  no  stream  of 
water  passing  through  it  in  the  sense  of 
a  water  course.  Chamberlain  v.  Heming- 
way, 63  Conn.  1,  27  Atl.  239,  8  Am.  St. 
Rep.  330,  22  L.  R.  A.  45    (1893). 

A  natural  water  course  does  not  cease 
to  be  such  by  reason  of  the  fact  that  its 
channel  is  artifically  deepened  to  facili- 
tate the  flow,  or  for  the  purpose  of  drain- 
age. Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 
Huddleston,  21  Ind.  App.  621,  52  N.  E. 
1008,   69  Am.  St.  Rep.   385    (1899;. 

B.      Canals  May  Become,  When. 

A  canal  can  never  come  under  the 
designation  of  a  natural  water  course  un- 
less it  is  a  mere  enlargement  of  a 
natural  water  course.  Porter  v.  Arm- 
strong, 129  N.  C.  101,  39  S.  E.  799 
(1901). 

As  to  canals  for  drainage  of  storm  or 
surface  waters  not  being  water  courses, 
see  ante  II,  this  note. 

An  artificial  ditch  to  give  direction  to 
the  flow  of  the  current  of  a  river  is  in- 
cluded in  the  term  "natural  water 
course."  Stimson  v.  Brookline,  197 
Mass.  568,  83  N.  E.  893,  16  L.  R.  A. 
(N.  S.)  280  (1908). 

Where  a  ditch  or  canal  was  originally 

dug  for  the  purpose  of  carrying  a  portion 

of  a  river,  and  the  waters  continued  to 

flow   through    such    canal    or    ditch     for 

W.    &    M— 28 


many  years  without  change  or  objection, 
and  it  was  such  that  it  would  have  con- 
stituted a  natural  water  course  had  the 
flow  begun  without  artificial  aid,  it  may 
be  treated  as  a  natural  water  course,  and 
be  subject  to  all  the  rules  applicable  to 
such  a  stream.  Stimson  v.  Town  of 
Brookline,  197  Mass.  568,  83  N.  E.  893, 
16  L.  R.  A.    (N.  S.)   820   (1908). 

C.      Conditions    of    Construction    and 
Dedication. 

An  artificial  water  course  may  be 
created  under  such  conditions  that,  so 
far  as  the  rules  of  law  and  the  rights  of 
the  public  and  of  individuals  are  con- 
cerned, it  is  to  be  treated  as  if  it  were  of 
natural  origin.  City  of  Reading  v.  Alt- 
house,  93  Pa.  St.  400  (1880);  Weather- 
by  v.  Meiklejohn,  56  Wis.  73,  13  N.  W. 
697  (1882). 

It  is  conceivable  that  the  mere  con- 
struction of  a  water  course  and  dedica- 
tion of  property  to  that  use  by  all  the 
persons  whose  rights  of  property  might 
be  affected  by  the  change,  with  accept- 
ance by  the  public,  if  public  interests 
were  involved,  might  give  these  persons 
the  same  rights  in  it  that  they  would 
have  if  it  were  a  natural  water  course. 
Stimson  v.  Brookline,  197  Mass.  568, 
83  N.  E.  893,  16  L.  R.  A.  (N.  S.)  2S0 
(1908). 


434 


Water  and  Mineral  Cases.         [Washington 


equitable  estoppel."  And  Mr.  Gould  says:  "When  a  riparian  owner 
has  diverted  the  water  into  an  artificial  channel,  and  continued  such 
change  for  more  than  twenty  years,  he  cannot  restore  it  to  its  natural 
channel  to  the  injury  of  other  proprietors  along  such  channel  who  have 
erected  works  or  cultivated  their  lands  with  reference  to  the  changed 
condition  of  the  stream.  *  *  *  "  Gould  on  Waters  (3d  Ed.),  §  225. 
These  authorities  maintain  the  principle  that  the  proprietor  of  a  stream 
by  diverting  it  into  an  artificial  channel,  and  suffering  it  to  remain  in  its 
changed  condition  for  a  period  of  time  exceeding  the  statute  of  limitations, 
is  estopped  as  against  a  person  making  a  beneficial  use  of  the  water  from 
returning  it  to  its  natural  channel  to  that  person's  loss  and  injury;  that 
the  user  does  not  have  to  show  a  prescriptive  right  in  himself,  or  a  use  by 
himself  for  the  period  of  the  statute  of  limitations  in  order  to  prevent  its 
return.    All  he  needs  to  show  is  that  the  person  diverting  it  has  suffered 


Judge  Cooley  says  that  where  a  ditch 
is  by  common  consent  dug  as  a  neigh- 
borhood drain,  and  has  remained  open 
as  a  water  course  for  a  series  of  years,  it 
ought  to  be  governed  by  the  same  rules 
that  apply  to  other,  i.  e.  natural,  water 
courses.  Freeman  v.  Weeks,  45  Mich. 
335,  7  N.  W.  904  (1881). 

Where  a  landowner  for  the  purpose  of 
straightening  a  stream  cuts  a  ditch 
through  his  land  and  over  and  along 
the  highway,  with  the  acquiescence  and 
consent  of  all  concerned,  and  turns  the 
water  into  such  new  channel,  it  will 
thereafter  be  governed  by  the  same  rules 
as  govern  natural  streams.  Missouri 
Pac.  R.  Co.  v.  Keyes,  55  Kan.  205,  40 
Pac.  275,  49  Am.  St.  Rep.  249   (1895). 

D.      Existence   from    Time   Out    of 
Mind. 

The  origin  of  an  artificial  stream  being 
unknown,  the  circumstances  may  be  such 
as  to  lead  to  the  inference  that  the  chan- 
nel was  constructed  on  the  terms  that 
the  riparian  proprietors  should  have  the 
same  rights  as  though  it  were  a  natural 
water  course.  Bailey  &  Co.  v.  Clark, 
Son  &  Morland  [1902]  1  Ch.  664,  649- 
673. 

Where  it  is  impossible  to  tell  the  time 
of  construction  of  the  artificial  part  of 
a  stream  originating  in  a  natural  spring, 


the  stream  must  be  deemed  to  be  a  nat- 
ural water  course.  Mostyn  v.  Atherton, 
[1899]  2  Ch.  360,  81  L.  T.  N.  S.  356,  68 
L.  J.   Ch.   629,  48   W.  R.    168. 

An  artificial  water  ditch  conducting 
water  from  a  creek  to  the  lands  of  a 
number  of  persons,  and  which  has  ex- 
isted since  time  immemorial,  is  legally  a 
natural  water  course.  City  of  Reading 
v.  Althouse,  93  Pa.  St.  400,  405   (1880). 

E.      Prescriptive    Use. 

Prescriptive  rights  may  be  acquired 
in  artificial  water  courses  as  well  as  in 
natural  ones,  where  it  appears  the  former 
are  intended  to  be  permanent  instead  of 
temporary,  thus  leaving  room  for  a  find- 
ing that  their  use  by  the  party  asserting 
prescription  was  not  precarious  and  by 
way  of  license  from  the  owner,  but  ad- 
verse. Ranney  v.  St.  Louis  &  S.  F.  R. 
Co.,  137  Mo.  App.  537  (1909),  119  S.  W. 
484;  Ellis  v.  St.  Louis  &  S.  F.  R.  Co. 
(Mo.  App.,  May  25,  1909),  119  S.  W. 
489. 

The  principle  is  analogous  to  that 
under  which  other  rights  are  acquired  in 
real  property  by  prescription  or  adverse 
use.  Stimson  v.  Brookline,  197  Mass. 
568,  83  N.  E.  893,  16  L.  R.  A.  (N.  S.) 
280    (1908). 

After  a  long  lapse  of  time,  and  even 
after  no  more  than  twenty  years,  if  the 


1909] 


Hollett  v.  Davis. 


435 


it  to  remain  in  its  changed  state  for  that  period,  and  that  he  has  made  a 
beneficial  use  of  the  water  relying  upon  the  permanency  of  the  change. 
The  court  in  its  decree  directed  that  the  water  flowing  from  the  spring 
be  divided  so  that  forty  per  centum  thereof  should  be  permitted  to  flow 
down  Gilmore  Creek  during  the  irrigating  season  of  the  year,  and  one- 
half  thereof  during  other  seasons.  We  are  unable  to  find  any  basis  in 
the  record  for  this  division  of  the  water.  While  it  appears  that  the 
appellant  and  his  predecessors  in  interest  had  irrigated  a  five-acre  tract 
lying  immediately  below  the  spring  for  a  period  of  ten  years  and  more 
and  three  acres  of  it  practically  for  twenty-five  years,  and  had  irrigated 
parts  of  the  meadow  in  section  12  intermittently  for  nearly  as  long,  the 
record  is  silent  as  to  the  quantity  of  water  thus  required,  or  as  to  what 
part  of  the  total  flow  was  actually  used.  So  also  it  is  silent  as  to  the 
proportion  of  the  water  flowing  from  the  spring  that  was  permitted  to 
flow  down  Gilmore  Creek,  or  what  proportion  of  that  which  was  thus 
permitted  to  flow  the  respondents  actually  used  or  required  for  irrigation 


water  course  continue  without  change, 
with  the  acquiescence  of  the  public  au- 
thorities and  of  everybody  interested, 
there  is  every  reason,  both  upon  principle 
and  authority,  for  applying  the  same 
rules  of  law  to  an  artificial  channel  as  to 
a  natural  water  course.  Stimson  v. 
Brookline,  197  Mass.  568,  83  N.  E.  893, 
16  L.  R.  A.   (N.  S.)   280   (1908). 

Where  the  waters  of  a  stream  have 
been  turned  into  an  artificial  channel, 
and  have  run  therein  for  twenty  years 
without  objection,  the  proprietor  of  the 
land  at  the  lower  end  of  the  channel 
making  valuable  improvements,  relying 
upon  the  stream  for  a  beneficial  use,  has 
the  right  of  a  riparian  owner  of  a  water 
course  as  against  the  owner  of  the  upper 
end  of  the  artificial  channel,  who  has 
caused  the  waters  to  flow  therein  for 
twenty  years.  Shepardson  v.  Perkins,  58 
N.  H.  354   (1878). 

A  proprietor  of  land  who  for  more* 
than  twenty-five  years  has  conducted  the 
waters  of  a  spring  in  artificial  channels, 
pursuing  substantially  the  course  of  the 
natural  flow  of  the  waters,  will  be  enti- 
tled to  have  the  waters  continue  to  flow 
in  such  channels.  Miner  v.  Nichols,  24 
R.  I.  199,  52  Atl.  893    (1902). 


A  new  channel  was  held  to  become  the 
natural  channel  after  the  lapse  of  thirty 
years.  Matheson  v.  Ward,  24  Wash.  407, 
64  Pac.  520,  85  Am.  St.  Rep.  955   (1901). 

Where  the  waters  of  a  spring  have 
been  diverted  into  an  artificial  channel 
and  permitted  to  flow  there  for  more 
than  thirty  years,  and  third  parties,  re- 
lying on  its  continued  flow  therein, 
have  acquired  land  bordering  on  the 
stream  and  made  valuable  improvements 
thereon  which  will  become  valueless  after 
the  water  is  returned  to  its  original 
channel,  equity  and  good  conscience  re- 
quire that  the  artificial  channel  be  re- 
garded as  the  natural  channel  and  the 
upper  riparian  proprietor  will  not  be 
permitted  to  assert  the  contrary  for  his 
own  benefit  and  to  the  injury  of  others. 
Hollett  v.  Davis,  supra,  principal  case, 
following  Matheson  v.  Ward,  24  Wash. 
407,  64  Pac.  520,  85  Am.  St.  Rep.  955 
(1901). 

F.      Estoppel. 

Where  water  has  been  diverted  by 
means  of  an  artificial  channel,  lower 
riparian  proprietors  making  a  beneficial 
use  of  such  water,  have  no  right  by  pre- 
scription, based  on  their  use,  unless  such 


436 


Water  and  Mineral  Cases.         [Washington 


and  domestic  uses.  No  just  division  of  the  water  can  be  made  without 
knowledge  of  these  matters,  and  hence  we  cannot  in  this  court  direct  a 
final  decree  in  the  case,  nor  can  we  affirm  the  justness  of  the  decree 
entered. 

The  decree  appealed  from  will  be  reversed  and  the  case  remanded, 
with  instructions  to  receive  such  further  evidence  as  the  parties  may- 
desire  to  offer  on  the  line  above  indicated  as  will  enable  the  court  to 
make  a  just  division  of  the  water  between  them,  and  thereafter  to  enter 
a  decree  accordingly. 

RUDKIN,  C.  J.,  and  CHADWICK,  GOSE,  DUNBAR,  and  CROW, 
JJ.,  concur. 


use  has  been  continuous  for  the  statutory 
period;  but  where  they  have  made  val- 
uable investments  and  improvements 
with  reference  to  such  water,  they  can 
successfully  urge  an  estoppel  of  the  up- 
per riparian  proprietor.  Hollett  v. 
Davis,  supra,  principal  case. 

Where  a  proprietor  by  means  of  an 
artificial  channel  changes  the  course  of  a 
stream  flowing  through  his  property,  and 
another  has  purchased  land  and  made 
improvements  lower  down  on  the  stream 
in  its  new  position,  on  the  faith  that  the 
new  channel  will  be  permanent,  and  the 
water  continues  to  flow  in  the  new  chan- 
nel for  the  prescriptive  period,  the  pro- 
prietor making  the  change  will  not  be 
permitted  to  restore  the  stream  to  its 
original  channel.  Smith  v.  Musgrove,  32 
Mo.  App.  241    (1888). 


G.  For  Temporary  Use  or  Personal 
Convenience  Only. 

When  an  artificial  water  way  is  in- 
tended to  exist  only  so  long  as  suits  the 
purposes  of  him  who  makes  it  through 
his  lands,  even  a  riparian  proprietor  can- 
not acquire  an  easement  as  against*  him. 
Ranney  v.  St.  Louis  &  S.  F.  R.  Co.,  137 
Mo.  App.  537  (1909),  119  S.  W.  484; 
Ellis  v.  St.  Louis  &  S.  F.  R.  Co.  (Mo. 
App.,  May  25,   1909),   119   S.  W.  489. 

It  has  been  held  that  where  the  waters 
of  a  spring  have  been  diverted  for  pur- 
poses of  consumption,  and  the  artificial 
channel  has  been  extended  through  the 
lands  of  another  for  the  purpose  of  car- 
rying off  the  surplus  waters  in  times  of 
rains,  he  acquires  no  right  to  the  con- 
tinuance of  the  channel.  Mitchell  v. 
Parks,  26  Ind.  354   (1866). 


1908] 


Zimmerman  et  al.  v.  Funchion  et  al. 


437 


ZIMMERMAN  et  al.  v.  FTJNCHION  et  al. 

[Circuit  Court  of  Appeals,  Ninth  Circuit,  May  24,  1908.] 
89   C.   C.  A.   53,   161   Fed.   859. 

1.  Mines  and    Mining — Placer   Claims — Excessive    Location,    Effect. 

A  placer  claim  location  exceeding  the '  statutory  twenty  acres  does  not  render 
the  entire  claim  void;  it  is  void  as  to  excess  only. 

2.  Same — Selection  of  Discard. 

The  prior  locator  in  actual  possession  of  a  placer  claim  which  exceeds  the  legal 
limitation,  and  diligently  working  the  same  in  good  faith,  may  select  what  por- 
tion of  the  claim  he  will  discard  as  excess  (following  Mcintosh  v.  Price,  121  Fed. 
716,  58  C.  C.  A.  136). 

3.  Same — Subsequent  Locator's  Right  to  Select  Excess. 

Where  the  prior  locator,  who  is  not  in  actual  possession  of  the  claim  containing 
an  excess  over  the  legal  limitation,  knowingly  refuses  or  neglects  to  draw  in 
bis  lines  to  the  legal  limit,  any  other  prospector  may  take  the  excess  within 
another  location  from  any  part  of  such  prior  excessive  location  (raised  but  not 
decided) . 

Error  to  District  Court  of  the  United  States  for  the  Territory  of 
Alaska,  Third  Division. 

Action  in  ejectment.  Judgment  for  plaintiffs  in  court  below.  De- 
fendants appealed.    Affirmed. 

For  plaintiffs  in  error — McGinn  &  Sullivan,  J.  C.  Campbell,  W.  H. 
Metson,  F.  C.  Drew,  C.  H.  Oatman,  and  J.  A.  MacKinzie. 


CASE   NOTE. 

Excessive    Location    of    Mining    Claim. 

I.     Honest  Mistake  in  Locating 
Boundaries,    437. 

A.  General  Rule,  437. 

B.  Claim       Excessive       in 

Length,  440. 

C.  Claim       Excessive       in 

Width,  441. 

D.  Claim      Excessive      in 

Length     and    Width, 
441. 

E.  Excess    Rejected,    441. 

F.  Correction     of     Boun- 

dary   Lines,  441. 

G.  Selection     of    Portion 

to   Be   Rejected,  442. 
II.     Fraudulent     Inclusion     of 
Excess,  442. 
A.     General  Rule,  442. 


B.     Sham  Locations,  444. 
III.     Montana  Rule,  444. 

1.     Honest  Mistake  in   Locating  Boun- 
daries. 

A.     General   Rule. 

The  general  rule  is  that  where  an 
excessive  location  is  made  through  mis- 
take, while  acting  in  good  faith,  as 
where  the  locator  sets  his  stakes  and 
estimates  his  distances  without  chain 
or  compass,  the  location  is  valid  as  to 
the  amount  of  ground  the  locator  is 
entitled  to  claim,  and  void  as  to  ex- 
cess only. 

United  States. — Richmond  Man.  Co. 
v.  Rose,  114  U.  S.  576,  29  L.  Ed.  273,  5 
Sup.  Ct.  1055  (1885),  affirming  Rose 
v.  Richmond  Min.  Co.,  17  Nev.  25,  27 
Pac.  1105  (1882);  Glacier  Mt.  S.  Min. 
€o.  v.  Willis,  127  U.  S.  471,  481,  32  L. 


438 


Water  and  Mineral  Cases. 


[Alaska 


For  defendants  in  error — T.  C.  West. 

ROSS,  Circuit  Judge.  This  was  an  action  of  ejectment  tried  before 
the  court  below  by  stipulation  of  the  parties,  without  a  jury,  and  re- 
sulted in  findings  and  judgment  for  the  plaintiffs,  who  are  the  defend- 
ants in  error  here.  The  subject  of  the  action  is  a  strip  of  mining 
ground  in  the  Fairbanks  mining  district  of  Alaska,  covered  by  Creek 
Placer  Mining  Claim  No.  6,  above  Discovery,  on  Dome  Creek,  under 
which  the  defendants  in  error  claim ;  and  by  Bench  Claim  No.  6,  First 
Tier  Right  Limit  of  Dome  Creek,  under  which  the  plaintiffs  in  error 
claim.  It  is  undisputed  that  the  Creek  claim  was  the  prior  location, 
it  having  been  located  by  Funchion  on  the  17th  day  of  September,  1902, 
for  one  John  C.  Ross,  to  whose  interest  Funchion  and  his  codefendant 
in  error  succeeded  prior  to  the  bringing  of  the  action.  The  bench  claim 
was  located  May  12,  1904,  by  Zimmerman.  It  turned  out  that  the 
placer  claim,  as  a  matter  of  fact,  contained  21.7  acres — an  excess  of 
1.7  acres  over  the  legal  limit  of  20  acres  prescribed  by  statute  for  placer 
claims.  It  is  well  settled  that  the  excess  did  not  render  the  entire  Creek 
claim  void,  but  that  it  was  void  only  as  to  the  excess.     Jupiter  Mining 


Ed.  174,  8  Sup.  Ct.  1214,  17  Mor.  Min. 
Rep.  127  (1888);  Parley's  Park  S.  Min. 
Co.  v.  Kerr,  130  U.  S.  256,  32  L.  Ed.  906, 
9  Sup.  Ct.  511  (1889),  17  Mor.  Min. 
P»ep.  201;  Eureka  Consol.  Min.  Co.  v. 
Richmond  Min.  Co.,  4  Sawy.  302,  Fed. 
Cas.  No.  4,548,  9  Mor.  Min.  Rep.  578 
(1877);  North  Noonday  Min.  Co.  v. 
Orient  Min.  Co.,  1  Fed.  522,  6  Sawy.  299, 
9  Mor.  Min.  Rep.  529  (1880);  Jupiter 
Min.  Co.  v.  Bodie  Consol.  Min.  Co.,  11 
Fed.  666,  7  Sawy.  96  (1881),  4  Mor.  Min. 
Rep.  411;  Lakin  v.  Dolly,  53  Fed.  333 
(1891);  Doe  v.  Waterloo  Min.  Co.,  54 
Fed.  935,  941  (1893);  Mcintosh  v. 
Price,  121  Fed.  716,  58  C.  C.  A.  136 
(1903);  Walton  v.  Wild  Goose  Min.  & 
T.  Co.,  123  Fed.  209,  218,  60  C.  C.  A. 
164,  22  Mor.  Min.  Rep.  688  (1903): 
Zimmerman  v.  Funchion,  161  Fed.  859 
(1908),  the  principal  case;  Waskey  v. 
Hammer,  170  Fed.  31  (1909),  Bee  the 
case  in  volume  2,  this  series. 

Alaska. — Pratt  v.  United  Alaska  Min. 
Co.,  1  Alaska  95  (1900);  Price  v.  Mc- 
intosh,  1  Alaska  286,  291    (1901). 

California. — English  v.     Johnson,      17 


Cal.  107,  12  Mor.  Min.  Rep.  202,  76 
Am.  Dec.  574  (1860);  Thompson  v. 
Spray,  72  Cal.  528,  14  Pac.  182  (1887)  ; 
Doe  v.  Tyler,  73  Cal.  21,  14  Pac.  375 
(1887)  ;  Doe  v.  Sanger,  83  Cal.  203,  17 
Mor.  Min.  Rep.  298,  23  Pac.  365 
(1890);  Howeth  v.  Sullinger,  113  Cal. 
547,  45  Pac.  841  (1896);  Sherman  v. 
Wrinkle,  121  Cal.  503,  53  Pac.  1090,  54 
Pac.  270  (1898);  Conway  v.  Hart,  129 
,Cal.  480,  62  Pac.  44,  21  Mor.  Min.  Rep. 

20  (1900);  McElligott  v.  Krogh,  151 
Cal.  126,  90  Pac.  823   (1907). 

Colorado. — Patterson  v.  Hitchcock,  3 
Colo.  533,  5  Mor.  Min.  Rep.  542  (1877)  ; 
Taylor  v.  Parenteau.  23  Colo.  368. 
18  Mor.  Min.  Rep.  534,  48  Pac.  505 
(1897).  See,  also,  Wolfley  v.  Lebanon 
Min.  Co.,  4  Colo.  112,  13  Mor.  Min.  Rep. 
282   (1878). 

Idaho. — Atkins  v.  Hendree,  1  Idaho 
107,  1  Idaho  (West  Ed.)  95; 
2  Mor.  Min.  Rep.  328  (1867);  Stem- 
Winder  Min.  Co.  v.  Emma  &  L.  C.  Con- 
sol. Min.  Co.,  2  Idaho  421,  2  Idaho  456, 

21  Pac.  1040  (1889)  ;  affirmed  149  U.  S. 
787,      37      L.     Ed.     941,     13     Sup.     Ct. 


1908] 


Zimmerman  et  al.  v.  Funchion  et  al. 


439 


Co.  v.  Bodie  Consol.  Min.  Co.,  n  Fed.  666,  4  Mor.  Min.  Rep.  411 ;  English 
v.  Johnson,  17  Cal.  107,  108,  12  Mor.  Min.  Rep.  202,  76  Am.  Dec.  574; 
Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182;  Howeth  v.  Sullenger, 
113  Cal.  547,  45  Pac.  841;  Patterson  v.  Hitchcock,  3  Colo.  533,  5  Mor. 
Min.  Rep.  542 ;  Taylor  v.  Parenteau,  23  Colo.  368,  18  Mor.  Min.  Rep.  534, 
48  Pac.  505 ;  Hansen  v.  Fletcher,  10  Utah  266,  37  Pac.  481 ;  McPherson  v. 
Julius,  17  S.  Dak.  98,  95  N.  W.  435;  McElligott  v.  Krogh,  151  Cal.  126, 
90  Pac.  825 ;  Lindley  on  Mines,  §  362 ;  Snyder  on  Mines,  §  398. 

In  Mcintosh  v.  Price,  121  Fed.  716,  58  C.  C.  A.  136,  we  held,  and 
rightly  held,  that  where  a  prior  locator  is  in  the  actual  possession  of  a 
claim  which  as  a  matter  of  fact  exceeds  the  legal  limit  of  20  acres,  and 
is  diligently  working  the  same  in  good  faith,  he  is  at  liberty  to  elect 
what  portion  of  the  claim  he  will  reject  as  the  excess,  saying: 

"We  are  very  clearly  of  the  opinion  that  if  any  portion  of  the  ground 
located  by  the  Kjelsbergs  was  subject  to  relocation  as  being  in  excess 
of  the  permitted  width  the  owners  thereof  in  possession  under  the 
circumstances  found  by  the  trial  court  could  not  be  deprived  of  the 
right  to  select  the  portion  thereof  which  they  would  elect  to  hold,  and 
that  another  locator  had  no  right  to  enter  upon  that  portion  of  the  claim 
in  which  they  were  working,  and  which  was  the  valuable  portion  thereof, 
and  oust  them  from  possession  by  making  a  location  thereon.  The  de- 
fendants in  error  were  given  no  notice  that  the  width  of  their  claim 


1052;  Burke  v.  McDonald,  2  Idaho  679, 
683,  2  Idaho  (West.  Ed.)  646,  17  Mor. 
Min.  Rep.  325,  33  Pac.  49    (1890). 

Montana. — Hoffman  v.  Beecher,  12 
Mont.  89,  17  Mor.  Min.  Rep.  503,  31 
Pac.  92    (1892). 

Nevada. — Golden  Fleece  Co.  v.  Cable 
Consol.  Co.,  12  Nev.  312,  321,  1  Mor.  Min. 
Rep.  120  (1877);  Rose  v.  Richmond 
Min.  Co.,  17  Nev.  25,  27  Pac.  1105 
(1882),  affirmed  in  Richmond  Min.  Co.  v. 
Rose,  114  U.  S.  576,  29  L.  Ed.  273,  5 
Sup.  Ct.  1055    (1885). 

Oregon. — Stephens  v.  Woods  (argu- 
endo), 39  Or.  441,  21  Mor.  Min.  Rep. 
443,  65  Pac.  602  (1901);  Gohres  v. 
Illinois  &  J.  Gravel  Min.  Co.,  40  Or. 
516,  67  Pac.  666   (1902). 

South  Dakota. — McPherson  v.  Julius, 
17  S.  Dak.  98,  95  N.  W.  428   (1903). 

Utah. — Bullion  B.  &  C.  Min.  Co.  v. 
Eureka  Hill  Min.  Co.,  5  Utah  72,  11  Pac. 
515  (1886);  Hansen  v.  Fletcher,  10 
Utah    266,    37    Pac.    480    (1894).      See, 


also,  Eilers  v.  Boatman,  3  Utah  159,  15 
Mor.   Min.  Rep.  462,  2  Pac.   66    (1883). 

English. — Granger  v.  Fotheringham,  3 
Brit.  Col.   (Can.)   590   (1894). 

Some  of  the  cases  say  that  this  rule 
applies  where  excess  is  (included  by 
mistake,  and  without  fraud,  and  is  cor- 
rected before  rights  of  third  parties 
attach.  Stem- Winder  Min.  Co.  v.  Emma 
&  L.  C.  Min.  Co.,  2  Idaho  421, 
21  Pac.  1040  (1889).  Others  that  the 
rule  applies  except,  it  may  be,  where 
the  excess  is  so  large  as  to  give 
rise  to  an  inference  of  bad  faith. 
See  Burke  v.  McDonald  {dictum),  2 
Idaho  679,  2  Idaho  (West  Ed.)  646, 
17  Mor.  Min.  Rep.  325,  33  Pac.  49 
(1890);  Gohres  v.  Illinois  &  J.  Gravel 
Min.  Co.,  40  Or.  516,  67  Pac.  666 
(1902);  Hansen  v.  Fletcher,  10  Utah 
266,  37  Pac.  480  (1894).  See  post  divis- 
ion III,  this  note. 

Exact  accuracy  in  marking  of  bound- 
aries    in     mining     claims      cannot     be 


440 


Water  and  Mineral  Cases. 


[Alaska 


was  excessive,  or  that  any  part  of  their  location  was  void,  and  they 
were  given  no  opportunity  to  draw  in  their  lines  so  as  to  comply  with 
the  local  mining  regulations.  The  policy  of  the  mining  laws  of  the 
United  States  does  not  permit  a  locator  to  thrust  out  of  the  possession 
of  his  discovery  and  the  pay  streak  of  his  claim  one  who  has  located 
a  placer  claim  in  attempted  compliance  with  the  mining  rules  and  laws, 
and  who  is  actually  engaged  in  mining  upon  that  portion  of  his  claim." 

While  the  counsel  for  the  plaintiffs  in  error  concede  that  to  be  the 
law,  they  contend  that  where  such  prior  locator  is  not  in  the  actual 
possession  of  the  claim  containing  an  excess  over  the  legal  limit  of 
such  claims,  and  knowingly  refuses  or  neglects  to  draw  in  his  lines  so 


expected  or  required.  See  Burke  v.  Mc- 
Donald, 2  Idaho  679,  2  Idaho  (West  Ed.) 
646,  17  Mor.  Min.  Rep.  325,  33  Pac. 
49  (1890).  The  reason  for  this  is  that 
the  locators  of  mining  claims  rarely 
have  the  facilities  or  the  time  for  mak- 
ing accurate  surveys,  and  differences  of 
a  few  feet  are  held  immaterial.  See  Mc- 
Pherson  v.  Julius,  17  S.  Dak.  98,  95  N. 
W.  428  (1903).  In  any  event  the  no- 
tice of  location  does  or  should  specify 
the  extent  of  the  claim,  and  even  when 
the  notice  does  not  .so  specify  the  lo- 
cator cannot  claim  more  ground  than 
the  law  allows.  See  Erhardt  v.  Boaro, 
113  U.  S.  527,  28  L.  Ed.  1113,  5  Sup. 
Ct.  560,  15  Mor.  Min.  Rep.  472  (1885). 
But  a  locator  disregarding  the  min- 
ing laws  and  valid  local  mining  rules 
and  regulations  by  locating  in  excess 
of  what  he  is  entitled  to  take,  has  no 
right  in  or  title  to  the  excess  as 
against  the  United  States.  Some  of  the 
cases  hold  that  he  has  no  rights  in 
Buch  excess  as  against  a  subsequent  lo- 
cator whose  filing  covers  such  excess, 
when  such  subsequent  locator  complies 
with  the  laws.  See  English  v.  Johnson, 
17  Cal.  107,  12  Mor.  Min.  Rep.  202, 
76  Am.  Dec.  574  (1860).  Hauswirth 
v.  Butcher,  4  Mont.  299,  1  Pac.  714 
(1882).  But  another  line  of  cases  holds 
that  the  locator  of  the  excess  cannot  be 
deprived  of  such  excess  until  he  is  noti- 
fied of  it,  as  declared  in  the  principal 
case,  and  that  a  subsequent  locator  on 
the  excess  acquires  no  interest.  See 
Porter  v.  Tonopah  North  Star  T.  &  D. 


Co.,  133  Fed.  756  (1904),  affirmed  146 
Fed.  385,  76  C.  C.  A.  657  (1906).  Thus, 
where  a  prospector  located  a  claim  in 
excess  of  the  maximum  limit  allowed  by 
law,  was  in  actual  possession,  and  en- 
gaged in  working  his  claim,  a  subse- 
quent locator  relocating  a  part  of  the 
claim,  on  the  ground  that  the  first  loca- 
tion exceeded  in  extent  that  which  the 
locator  was  entitled  to  claim,  was  held  to 
take  no  rights.  See  Mcintosh  v.  Price, 
121  Fed.  716  (1903).  The  reason  for 
this  is  that,  as  between  two  locators, 
and  as  affecting  their  rights  only,  one 
cannot  locate  grounds  of  which  the 
other  has  the  actual  possession  under 
claim  or  color  of  title,  because  in  such 
a  case  the  ground  is  not  "vacant  and 
unoccupied,"  even  though  the  claim 
made  to  it  be  invalid.  Price  v.  Mcin- 
tosh, 1  Alaska  286,  301  (1901).  See 
Russell  v.  Dufrese,  1  Alaska  486 
(1902);  Hansen  v.  Fletcher,  10  Utah 
266,  37  Pac.  480  (1894);  Sullivan  v. 
Sharp,  33  Colo.  346,  80  Pac.  1054 
(1905);  Peoria  &  C.  Mill  &  Min.  Co. 
v.  Turner,  20  Colo.  App.  474,  79  Pac. 
915  (1905);  Porter  v.  Tonopah  North 
Star  T.  &  C.  Co.,  133  Fed.  756  (1904), 
affirmed  146  Fed.  385,  76  C.  C.  A.  657 
(1906). 


B.    Claim   Excessive  in   Length. 

Where  a  mining  claim  exceeds  in 
length  that  which  is  allowed  by  statute, 
or  by  the  valid  local  mining  rules  and 


1908] 


Zimmerman  et  al.  v.  Funchion  et  al. 


441 


as  to  embrace  the  legal  limit  only,  any  other  prospector  is  at  liberty  to 
take  such  excess  within  another  location  from  any  part  of  the  prior  one; 
that,  otherwise,  such  prior  locator  might  hold  the  excess,  however  great, 
indefinitely.  The  question  suggested  is  an  important  one,  but  we  do  not 
find  it  necessary  or  proper  to  decide  it  in  this  case,  being  of  the  opinion 
that  it  does  not  arise  upon  the  record.  The  counsel  for  the  plaintiffs 
in  error  rely  upon  Funchion's  testimony,  and  say  in  their  brief  that  he 
testified : 

"That  Zimmerman  was  on  the  ground  from  May  12,  1904,  claiming 
up  to  his  stakes,  and  that  Zimmerman  had  always  claimed  to  them,  de- 
fendants in  error,  that  they  were  too  wide  at  the  lower  end." 

We  do  not  understand  such  to  be  the  effect  of  the  testimony  of  that 
witness,  who  appears  to  have  been  very  frank  in  his  answers,  and  from 


regulations,  it  is  invalid  as  to  excess 
in  length  only.  Atkins  v.  Hendree,  1 
Idaho  107,  1  Idaho  (West  Ed.)  95; 
2  Mor.  Min.  Eep.  328    (1867). 

C.  Claim  Excessive  in  Width. 
Where  a  claim  exceeds  in  width  that 
which  is  allowed  by  law  or  valid  local 
mining  rules  and  regulations,  but  is 
otherwise  valid,  it  is  invalid  as  to  ex- 
cess in  width  only.  Jupiter  Min.  Co. 
v.  Bodie  Consol.  Min.  Co.,  11  Fed.  666, 
7  Sawy.  96,  4  Mor.  Min.  Rep.  411 
(1881). 

D.     Claim    Excessive    in    Length    and. 
Width. 

In  those  cases  where  the  claim  is 
located,  by  mistake  and  without  fraud 
in  setting  the  stakes  and  marking  the 
boundaries,  so  as  to  exceed  in  both 
length  and  width  the  amount  of  ground 
to  which  the  locator  is  entitled,  it  is 
invalid  as  to  such  excessive  measure- 
ments in  length  and  width  only.  Stem- 
Winder  Min.  Co.  v.  Emma  &  L.  C.  Min. 
Co.,  2  Idaho  421,  21  Pac.  1040  (1889); 
Hansen  v.  Fletcher,  10  Utah  266,  37  Pac. 
480  (1894)  ;  Richmond  Min.  Co.  v.  Rose, 
114  U.  S.  576,  29  L.  Ed.  273,  5  Sup. 
Ct.  1055  (1885),  affirming  Rose  v.  Rich- 
mond Min.  Co.,  17  Nev.  25,  27  Pac. 
1105  (1882).  Notices  posted  on  the  lo- 
cation, as  required  by  law,  claiming  only 
the  amount  in  length  and  width  which 


the  locator  was  entitled  to  claim.     Han- 
sen v.  Fletcher,  supra. 

E.     Excess  Rejected. 

The  excess  in  length  or  width,  or  both, 
may  be  rejected,  and  the  claim  held  good 
as  to  the  remainder,  when  it  does  not 
interfere  with  previously  acquired  rights. 
Richmond  Min.  Co.  v.  Rose,  144  U.  S. 
576,  29  L.  Ed.  273.  5  Sup.  Ct.  1055 
(1885),  affirming  Rose  v.  Richmond 
Min.  Co.,  17  Nev.  25,  27  Pac.  1105 
(1882). 

F.     Correction  of  Boundary  Lines. 

Where  an  excessive  amount  of  ground 
is  included  in  a  placer  or  in  a  lode 
claim,  as  marked  off,  the  locator  may 
at  any  time  correct  the  boundary  lines 
iso  as  to  make  them  comply  with  the 
statutory  requirements. 

California. — Howeth  v.  Sullinger,  113 
Cal.  547,  45  Pac.  841  (1896);  McElli- 
gott  v.  Krogh,  151  Cal.  126,  90  Pac. 
823    (1907). 

Idaho.  —  Stem-Winder  Min.  Co.  v. 
Emma  &  L.  C.  Min.  Co.,  2  Idaho  421,  21 
Pac.   1040    (1889). 

Montana. — Wilson  v.  Freeman,  29 
Mont.  470,  75  Pac.  84  (1904). 

Oregon. — Sharkey  v.  Candiani,  48  Or. 
112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.) 
1  791    (1906). 


442 


Water  and  Mineral  Cases. 


[Alaska 


the  findings  of  fact  was  evidently  believed  by  the  trial  court,  which  is 
conclusive  upon  us.  Funchion  testified,  in  effect,  among  other  things, 
that,  so  far  from  knowing  that  the  lines  of  the  Creek  claim,  as  located 
by  him,  included  an  excess,  he  always  thought  that,  in  fact,  they  in- 
cluded less,  although  he  had  intended  taking  the  full  twenty  acres; 
and  he  further  testified  that  he  employed  a  surveyor  by  the  name  of 
Jackson  to  survey  the  claim,  who  did  so,  and  reported  as  the  result  of  his 
survey  17.10  acres  as  the  contents  of  the  claim;  that  subsequently  Zim- 
merman had  the  lines  of  the  Creek  claim  surveyed  by  a  surveyor,  who 
reported  that  they  contained  over  twenty  acres;  and  that  he  (the  witness) 


South  Dakota. — McPherson  v.  Julius, 
17   S.  Dak.  98,  95  N.  W.  428    (1903). 

Federal. — Tonopah  &  S.  L.  Min.  Co. 
v.  Tonopah  Min.  Co.,  125  Fed.  389 
(1903). 

English. — Granger  v.  Fotheringham,  3 
Brit.  Col.   (Can.)   590   (1894). 

This  right  is  manifest  for  the  reason 
stated  by  Crea.se,  J.,  who  says:  "I  see 
110  valid  or  good  reason  why  the  owner 
of  a  claim  who  *  *  *  can  abandon 
it  as  a  whole,  since  omne  majus  con- 
tinet  in  se  minus,  may  not  *  *  * 
abandon  any  specific  portion  of  a  claim." 
Granger  v.  Fotheringham,  3  Brit.  Col. 
(Can.)   590   (1894). 

The  lines,  as  between  a  corrected 
corner  and  one  not  corrected,  are  not 
required  to  be  straight  lines.  McEI- 
ligott  v.  Krogh,  151  Cal.  120,  90  Pac. 
823  (1907).  A  correction  of  location 
lines,  when  made,  relates  back  to  the 
date  of  the  original  location.  See  Bis- 
mark  Mt.  G.  Min.  Co.  v.  Sunbeam  Gold 
Co.,  14  Idaho  516,  95  Pac.  14  (1908). 
Strepey  v.  Stark,  7  Colo.  014,  17  Mor. 
Min.  Rep.  28,  5  Pac.  Ill  (1884);  Mc- 
Ginnis  v.  Egbert,  8  Colo.  41,  15  Mor. 
Min.  Rep.  329,  5  Pac.  652  (1884); 
Craig  v.  Thompson,  10  Colo.  517,  16  Pac. 
24  (1887);  Moyle  v.  Bullene,  7  Colo. 
App.  308,  44  Pac.  69  (1896)  ;  Milwaukee 
G.  Extract  Co.  v.  Gordon,  37  Mont.  209, 
95  Pac.  995  (1908);  McEvoy  v. 
'Hyman,  25  Fed.  596,  15  Mor.  Min.  Rep. 
397  (1885).  But  creates  no  rights  (see 
Milwaukee  G.  Extract  Co.  v.  Gordon, 
37      Mont.    209,      95      Pac.      995—1908; 


Bunker  Hill  &  Sullivan  Min.  &  C.  Co. 
v.  Empire  State-Idaho  Min.  &  D.  Co., 
134  Fed.  268—1903)  inconsistent  with 
rights  acquired  by  subsequent  locators. 
Bunker  Hill  &  Sullivan  Min.  &  C.  Co. 
v.  Empire  State-Idaho  Min.  &  D.  Co., 
supra. 

A  statute  making  null  and  void  a 
location,  the  boundaries  of  which  are- 
not  marked  as  required  by  law,  applies 
in  favor  of  conflicting  claims  only,  and 
does  not  prevent  a  correction  before 
rights  of  third  parties  attach.  Shar- 
key v.  Candiani,  48  Or.  112,  85  Pac.  219, 
7   L.   R.   A.    (N.   S.)    791    (1906). 

G.  Selection  of  Portion  to  Be  Rejected. 

In  those  cases  where  the  locator  has 
included  within  the  boundaries  of  his 
claim,  as  marked  out,  more  ground  than 
he  is  entitled  to  claim  under  the  law 
and  valid  local  mining  rules  and  reg- 
ulations, he  is  entitled  to  select  the 
portion  of  the  claim  as  staked  off  which 
is  to  be  rejected.  Mcintosh  v.  Price,  121 
Fed.  716,  58  C.  C.  A.  136  (1903); 
Zimmerman  v.  Funchion,  the  principal 
case;    Waskey  v.   Hammer,   170   Fed.   31 

(1909),  p. ,  vol.  2,  this  series;  Gram 

ger  v.  Fotheringham,  3  Brit.  Col.  (Can.) 
590    (1894). 

II.     Fraudulent    Inclusion    of    Excess 
A.     General  Rule. 

It  is  an  inference  arising  from  the 
language  used  in  nearly  all  the  cases 
announcing  the  general  rule,  as  above 
given,  that  if  the  excess  of  ground  in 
a  mining   claim   is   included     not  by   in- 


1908] 


ZlMMEKMAN  ET  AL.  V.  FUNCHION  ET  AL. 


443 


then  employed  another  surveyor,  Mr.  E.  G.  Allen,  the  result  of  whose 
survey  was  21.7  acres.     Said  the  witness: 

"Then  we  went  out  on  the  ground,  and  I  offered  Mr.  Zimmermann — I 
told  him  that  we  had  too  much  ground,  and  that,  if  he  wanted  to,  I  would 
give  him  88  feet  across  the  lower  end  of  the  claim,  which  would  then 
give  us  twenty  acres,  and,  if  he  did  not  take  that,  then,  I  would  dis- 
claim the  excess  over  on  the  left  limit.  Q.  What  did  he  say?  A.  He 
said,  'Go  ahead.'  Q.  Indicate  upon  Exhibit  A  about  where  the  88 
feet  is  that  you  refer  to.  A.  Across  the  lower  end,  88  feet  right 
across  the  lower  end  there.  Q.  What  did  he  say  to  that,  did  he  refuse? 
A.     Yes,  sir.     Q.     What  did  you  do  with  reference  to  disclaiming  on 


nocent  mistake,  but  by  fraudulent  de- 
sign, that  fact  will  invalidate  the  whole 
location;  and  there  are  numerous  dicta 
in  the  opinions  to  this  effect.  Thus, 
in  a  dictum,  the  Supreme  Court  of 
Idaho  says :  "If  a  claim  is  made  ex- 
cessive in  size  with  fraudulent  intent, 
it  (the  location)  is  void.  If  made  so 
large  that  it  cannot  be  deemed  the  result 
of  innocent  error,  fraud  will  be  presum- 
ed; or  if,  in  any  case,  it  be  made  so 
large  and  with  such  indistinct  mark- 
ing that  its  boundaries  cannot  be 
readily  traced,  and  a  subsequent  locator, 
after  reasonable  diligence,  cannot  find 
the  same,  it  will  be  void  as  against 
another  location  made  in  good  faith. 
Just  what  excess  will  be  tolerated,  or 
what  will  vitiate,  cannot  be  defined, 
but  must  depend  somewhat  upon  the 
circumstances  of  each  case."  Burke  v. 
McDonald,  2  Idaho  679,  2  Idaho 
(West  Ed.)  646,  17  Mor.  Min. 
Rep.  325,  33  Pac.  49  (1890).  And  in 
a  dictum  appended  to  the  announce- 
ment of  the  general  rule  as  given  above, 
the  Supreme  Court  of  Utah  said:  "We 
do  not  mean  to  be  understood  that  any 
length,  however  great  in  excess  of  the 
limit  of  the  grant,  can  be  located  with- 
out rendering  the  claim  void  for  want 
of  certainty.  A  mining  claim  may  in- 
clude so  great  an  excess  of  ground  as 
to  render  it  absolutely  void,  depend- 
ing upon  the  surroundings  and  par- 
ticular circumstances  of  each  case." 
Hansen  v.  Fletcher,  10  Utah  266,  37 
Pac.    480     (1894).      And    in    an    Alaska 


case  it  has  been  questioned,  but  not 
decided,  whether  a  mining  notice  which 
includes  by  its  terms  more  land  than 
is  permitted  by  the  mineral  laws  of  the 
United  States  invalidates  the  location. 
Pratt  v.  United  Alaska  Min.  Co.,  1 
Alaska  95  (1900).  See  Price  v.  Mc- 
intosh,   1    Alaska    286,    301     (1901). 

The  true  doctrine  wras  announced  in 
an  early  Idaho  case.  The  trial  court 
had  instructed  the  jury  that  if  they 
found  from  the  evidence  that  the  claim 
was  purposely  located  to  include  a 
greater  number  of  feet  than  the  law 
allowed,  then  the  location  was  an  at- 
tempted fraud  upon  the  provisions  of 
the  law  and  the  rights  of  others,  and 
the  location  null  and  void  as  against 
subsequent  location  of  the  same  ground. 
The  Supreme  Court  says :  "We  do  not 
assent  to  these  views  of  the  law 
*  *  *.  If  he  (the  locator)  claims 
more  than  the  law  allows,  it  is  void 
as  to  the  excess,  but  the  notice  does 
not  claim  all  the  ground  between  the 
stakes  *  *  *.  To  claim  more  than 
the  law  allows  is  no  fraud  on  others, 
for  they  have  the  same  means  of  ascer- 
taining the  attempted  fraud  that  the 
other  has  to  commit  it.  They  can 
measure  the  ground  and  confine  him 
to  the  limits  prescribed  by  law;  but  to 
say  that  he  should  lose  his  claim  en- 
tirely because  he  may  have  included 
more  than  he  can  hold  within  his  stakes 
by  a  few  feet,  or  by  ever  so  much,  is 
to  give  protection  to  the  parties,  sub- 
sequent claimants,  who  are  not  so  likely 


444 


Water  and  Mineral  Cases. 


[Alaska 


the  other  side?  A.  I  went  over  on  the  left  limit,  and  disclaimed  that 
excess.  Q.  In  what  manner?  A.  By  posting  a  notice  there.  Q. 
Putting  up  another  stake?  A.  Putting  up  another  stake.  Q.  How 
far  from  the  stake  that  you  put  up  on  the  hill,  on  that  corner,  if  you 
remember?  A.  I  don't  remember;  I  measured  it  from  the  center. 
Q.     Sufficient  to  reduce  the  claim  to  twenty  acres?     A.     Yes,  sir." 

This  survey  of  Allen  was  not  made  until  October  22,  1906,  and  this 
action  was  commenced  on  the  8th  day  of  September  of  the  same  year, 
so  that  it  appears  from  Funchion's  testimony,  corroborated  by  the  sur- 
veys, that,  so  far  from  knowing  that  his  claim  included  an  excess  over 
the  statutory  limit,  Funchion  thought,  until  some  time  after  the  bringing 
of  the  suit,  that  his  claim  embraced  less  than  twenty  acres.     That  wit- 


to  need  it  as  the  prior  locator  is  to 
be  protected  in  his  rights.  If  he  has 
too  mucn  it  is  easy  to  discover  it,  and 
all  the  benefit  the  subsequent  locator 
can  claim  is  that  he  should  be  entitled 
to  maintain  his  right  to  the  excess." 
Atkins  v.  Hendree,  1  Idaho  107;  1  Idaho 
(West  Ed.)  95,  100,  2  Mor.  Min.  Rep. 
328    (1867). 

The  question  was  squarely  raised  in 
a  South  Dakota  case,  where  it  was 
shown  mat  locators  of  a  claim  fraud- 
ulently included  650  feet  in  excess  of 
the  amount  allowed  by  law.  The  court 
say  that  others  could  easily  have  de- 
termined the  boundaries  of  the  claim  to 
which  the  prior  locator  was  entitled 
under  Ins  location,  and  that  the  loca- 
tion was  invalid  as  to  the  excess  only. 
McPherson  v.  Julius,  17  S.  Dak.  98,  95 
N.  W.  429  (1903).  See  Granger  v.  Foth- 
eringham,  3  Brit.  Col.  (Can.)  590 
(1894). 

B.   Sham  Locations. 

There  is  nothing  in  any  of  the  cases 
in  which  the  question  of  fraud  is  in- 
volved that  in  any  way  militates 
against,  or  is  in  any  way  contrary  to, 
the  doctrine  announced  in  McPherson 
v.  Julius,  supra.  But  it  is  the  settled 
law  that  a  locator  cannot,  by  sham  lo- 
cation, through  the  use  of  the  name  of 
his  friends,  relatives,  or  employees,  as 
dummies,  locate  for  his  own  benefit  a 
greater  area  of  mining  land  than  is  al- 
lowed by  law.    Thus,  under  section  2331 


U.  S.  Rev.  Stats.  (17  Stats,  at  Largs 
24,  5  Fed.  Stats.  Ann.  43,  U.  S. 
Comp.  Stats.  1901,  p.  1432),  which  pro- 
vides that  no  placer  location  "shall  in- 
clude more  than  twenty  acres  for  each 
individual  claimant,"  a  claim  located 
by  three  persons,  who  are  in  the  employ 
and  acting  in  the  interest  of  a  single 
company,  must  be  limited  to  twenty 
acres.  Gird  v.  California  Oil  Co.,  60 
Fed.  531,  18  Mor.  Min.  Rep.  45  (1894). 
In  an  Alaska  case,  where  two  locators 
attempted  to  secure  160  acres  of  placer 
land  by  use  of,  in  connection  with  their 
own,  the  names  of  six  friends  and  rela- 
tives, as  locators,  who  were  but  dummies, 
by  means  of  which  the  locators  sought  to 
secure  for  themselves  a  larger  area  of 
land  than  the  law  allows,  the  location 
was  held  invalid  for  the  fraud.  Cook  v. 
Klonos,  164  Fed.  529  (1908).  See  Mitchel 
v.  Cline,  84  Cal.  409,  415,  24  Pac.  164 
(1890). 

III.     Montana   Rule. 

In  Montana,  a  different  rule  seems 
to  prevail  from  the  general  rule  above 
set  out.  In  that  state  there  is  a  dis- 
position to  give  a  strict  construction  to 
the  statutes,  and  to  require  the  locator 
to  strictly  conform  in  all  respects  to  the 
requirements  of  the  statute,  and  to  hold 
any  excess  in  marking  off  the  claim, 
either  in  length  or  in  width,  to  inval- 
idate the  location;  holding  that  the 
boundaries  beyond  the  maximum  extent 


1908] 


Zimmerman  et  al.  v.  Funchion  et  al. 


445 


ness  further  testified  that,  in  1903,  he  and  Ross  sunk  a  hole  twenty-two 
feet  to  bed  rock  on  the  claim  near  the  creek  where  they  found  gold,  and 
that  in  the  year  1904  (the  year  Zimmerman  located  Bench  Claim  No.  6) 
Zimmerman  did  the  assessment  work  on  the  Creek  claim  under  employ- 
ment by  them. 

Under  the  circumstances  appearing,  we  do  not  think  it  was  permissible 
for  Zimmerman  to  select  the  excess  of  1.7  acres  from  that  portion  of  the 
Creek  claim  that  he  wanted. 

The  judgment  is  affirmed. 


of  the  ground  allowed,  are  not  bounda- 
ries at  all.  Hauswirth  v.  Butcher,  4 
Mont.  £99,  1  Pae.  714  (1S82);  Leg- 
gatt  v.  Stewart,  5  Mont.  107,  15  Mor. 
Min.  Rep.  358,  2  Pac.  320  (1883). 
And  for  that  reason  the  location  is 
held  to  be  void  for  uncertainty.  Leg- 
gatt  v.  Stewart,  supra.  The  question 
whether  the  location  cannot  be  main- 
tained as  the  amount  of  ground  the  lo- 
cator is  entitled  by  statute  and 
valid  local  mining  rules  and  regulations 
to    claim,    where    the    right   of    a   third 


party  has  not  intervened,  was  discussed 
but  not  decided  in  Hauswirth  v. 
Butcher,  supra.  The  ground  on  which 
that  state  places  this  ruling  is  that 
there  is  no  grant  from  the  government, 
under  act  of  congress  unless  there  i* 
a  location  strictly  according  to  law  and 
valid  local  mining  rules  and  regulations : 
that  such  a  location  is  a  condition  pre- 
cedent to  the  grant.  Belk  v.  Meagher, 
3  Mont.  65,  80,  1  Mor.  Min.  Eep.  522 
(1878)  ;  Hauswirth  v.  Butcher,  4  Mont. 
299,  1  Pac.  714  (1872). 


446 


Water  and  Mineeal  Cases. 


[Kansas 


J.  R.  CROWE  COAL  &  MINING  CO.  v.  ATKINSON  et  aL 
[Supreme  Court  of  Kansas,  July,  1911.] 


—  Kan.  —,116  Pac.  499. 

1.  Injunction — Right  of  Possession. 

One  claiming  the  right  to  mine  coal  in  lands  held  as  to  title  and  possession  by 
another,  may  try  that  right  by  bill  for  injunction  where  the  record  shows  clearly 
that  the  right  of  trial  by  jury  was  not  infringed. 

2.  Burnt  Deeds — Secondary  Evidence. 

Evidence  of  annotations  in  official  indexes,  indicating  an  exception  in  a  burnt 
deed,  together  with  evidence  of  a  custom  of  the  railroad  company  grantor  to  make 
such  exceptions  and  a  portion  of  the  deed  supporting  the  contention,  held  sufficient 
to  show  a  reservation  of  the  mineral  rights  in  land  granted. 

3.  Severance  of  Surface  and  Mineral  Rights. 

The  severance  of  the  surface  and  mineral  rights  is  accomplished  either  by  a 
conveyance  of  the  land  with  an  express  reservation  of  the  minerals,  or  by  a  con- 
veyance of  the  minerals  or  mining  rights. 

4.  Severance  of  Mineral  Rights — Taxation — Evidence. 

Where  there  is  no  showing  that  coal  in  place  is  separately  assessed  or  that  its 
existence  increased  the  taxes  against  the  land,  the  nonpayment  of  taxes  ia  not  in 
derogation  of  a  claim  of  ownership  in  the  coal  alone. 

5.  Mortgages — Foreclosure. 

An  instruction  that  a  sheriff's  deed  could  not  affect  one  not  made  a  party  to  the 
foreclosure  suit  may  be  construed  as  meaning  that  his  existing  rights  are  not 
affected  thereby. 

6.  Severance  of  Mineral  Rights — Adverse  Possession. 

Possession  for  agricultural  purposes  only,  although  taken  and  held  under  an 
ordinary  deed  purporting  to  transfer  complete  ownership,  is  not  deemed  adverse  to 
mining  rights  previously  severed  by  reservation  in  a  deed  in  the  same  chain  of  title. 

7.  Adverse  Possession. 

The  question  of  whether  possession  is  adverse  or  not  is  one  of  law. 

Appeal  from  District  Court,  Cherokee  County. 

Action  for  injunction  by  the  J.  R.  Crowe  Coal  &  Mining  Company 
against  Lillie  Atkinson  and  Ed  Atkinson.  Judgment  for  plaintiff.  De- 
fendants, appeal.    Affirmed. 

For  appellants — F.  M.  Brady  and  Sapp  &  Wilson. 

For  appellees — Skidmore  &  Walke 


NCTE. 

Injunction    against    entering    or    tres- 
passing on   land   of   which   defendant   is 


in  possession,  see  Williams  v.  Long,  20 
Mor.  Min.  Rep.  738  and  note  thereto. 


1911]  Coal  &  Mining  Co.  v.  Atkinson  et  al.  447 

M\SON  J  The  J.  R.  Crowe  Coal  &  Mining  Company  claimed 
to  have  the  right  to  mine  the  coal  underlying  land  the  title  to  which, 
subject  to  that  right,  was  conceded  to  be  in  Lillie  Atkinson.  It  brought 
an  action  against  her  and  her  husband,  Ed  Atkinson,  to  enjoin  them 
from  interfering  with  its  occupancy  of  so  much  of  the  land  as  was  neces- 
sary to  its  mining  operations.  Judgment  was  rendered  for  the  plaintiff 
but  this  was  reversed  upon  the  ground  that  the  defendants  were  entitled 
to  a  trial  by  jury.  Atkinson  v.  Crowe,  80  Kan.  161,  102  Pac.  50,  106  Pac. 
105*  Upon  a  second  trial  a  jury  returned  a  verdict  for  the  plaintiff,  upon 
which  a  judgment  was  rendered,  and  the  defendants  again  appeal 

The    defendants    maintain    that    they    were    in   possession    of     the 
propertv  in  controversy  under  claim  of  title,  and  that,  therefore,  if  the 
plaintiff  was  entitled  to  recover  at  all,  its  remedy  was  by  ejectment,  and 
not  bv  injunction.    Whether  or  not  ejectment  would  have  been  an  avail- 
able remedy,  the  peculiar  situation  suggested  plausible  grounds  for  pro- 
ceeding bv  injunction.    Upon  the  first  appeal  the  judgment  was  reversed 
specifically  because  a  jurv  trial  had  been  denied.    The  fact  that  the  order 
of  reversal  was  based  wholly  on  this  ground  fairly  implied  that  the  action 
was  regarded  as  maintainable  in  the  form  in  which  it  was  brought.  More- 
over   the  parties  have  been  afforded  a  fair  opportunity  to  try  out  their 
controversy,   the   claims   of   each   were   fully  understood   by  the   other, 
and  the  judgment  fixes  their  respective  rights.     In  this  situation  the  de- 
cree ou-ht  not  to  be  disturbed  on  account  of  the  form  of  the  action. 
The  defendants  suggest  that,  although  a  jury  passed  upon  the  evidence, 
its  findings  were  only  advisory,  because  that  is  the  ordinary  rule  in  in- 
junction and  other  equitable  proceedings.     Here,  however,  this  court  re- 
versed the  first  judgment  because  the  issue  involved  was  one  upon  which 
a  jurv  trial  was  a  matter  of  right.    It  follows  that  the  decision  of  the  jury 
was  final  unless  set  aside  upon  such  grounds  as  would  be  available  in 
ejectment  or  any  strictly  legal  action. 

The  facts  out  of  which  the  controversy  grows  are  stated  in  the  former 
opinion.  Thev  are  substantially  as  follows:  The  land  involved  was 
formerly  owned  bv  the  Kansas  City,  Ft.  Scott  &  Gulf  Railroad  Company. 
About  Julv  20,  1881,  that  company  executed  a  deed  to  Jeremiah  Hogan 
The  plaintiff  claims,  and  the  defendants  deny,  that  this  deed  contained 
a  reservation  of  the  coal  and  lead  mineral  underlying  the  land  with  the 
right  to  enter  upon  the  surface  for  the  purpose  of  mining  it.  The  deed 
was  filed  for  record  August  13,  1881.  In  the  fall  of  1885  some  of  the 
books  of  record  in  the  office  of  the  register  of  deeds,  including  that  in  which 
this  deed  was  recorded,  were  destroyed  by  an  explosion.  Hogan  gave  an 
ordinary  mortgage  on  the  land,  containing  no  reference  to  any  reserva- 
tion or  exception.     This  was  foreclosed  without  the  railroad  company 


448  Watek  and  Mineral  Cases.  [Kansas 

being  made  a  party,  and  the  defendants  claim  through  a  sheriff's  deed 
purporting  to  convey  a  complete  title.  The  plaintiff  has  succeeded  to  the 
rights  of  the  railroad  company  in  connection  with  the  coal.  At  the  time 
the  action  was  brought,  the  defendants  and  those  through  whom  they 
claim  had  been  in  the  actual  possession  of  the  land  for  over  15  years, 
asserting  title  through  the  sheriff's  deed.  They  had  never,  however,  un- 
dertaken any  mining  operations  thereon,  having  used  it  for  agricultural 
purposes  only. 

The  principal  question  of  fact  is  whether  the  deed  from  the 
railroad  company  contained  a  reservation  of  the  mineral  rights.  The 
principal  question  of  law  is  whether  the  continuous  occupancy  of  the 
surface  for  15  years  under  a  deed  purporting  to  convey  the  entire  prop- 
erty barred  the  claim  to  the  coal  on  the  part  of  the  railroad  company 
and  its  grantee. 

The  jury  specifically  found  that  the  deed  did  contain  the  reservation 
referred  to,  and  we  think  the  finding  abundantly  supported  by  the  evi- 
dence. Annotations  in  official  indexes  which  escaped  destruction  indi- 
cated an  exception  in  the  deed  with  regard  to  the  minerals.  There  was 
testimony  that  deeds  from  the  railroad  company  at  that  time  contained 
the  form  of  reservation  claimed  by  the  plaintiff.  A  portion  of  a  partially 
destroyed  volume  was  produced  which  apparently  had  contained  the  rec- 
ord of  this  deed;  and  so  much  of  its  language  as  was  preserved  sup- 
ported the  contention  of  the  plaintiff.  Objections  are  made  to  the  com- 
petency of  the  evidence,  but  we  do  not  think  them  well  founded.  "The 
severance  of  the  surface  and  mineral  rights  is  accomplished  either  by  a 
conveyance  of  the  land  with  an  express  reservation  of  the  minerals,  or  by 
a  conveyance  of  the  minerals  or  mining  rights."  27  Cyc.  682 ;  Moore  v. 
Griffin,  72  Kan.  164,  83  Pac.  395,  4  L.  R.  A.  (N.  S.)  477-  "After  the 
mineral  is  conveyed  apart  from  the  land,  or  vice  versa,  two  separate  estates 
exist,  each  of  which  is  distinct.  The  surface  and  the  mineral  right  are 
then  held  by  separate  and  distinct  titles  in  severalty,  and  each  is  a  free- 
hold estate  of  inheritance  separate  from  and  independent  of  the  other." 
27  Cyc.  687.  "Adverse  possession  of  the  surface  of  the  land  does  not 
necessarily  include  possession  of  the  minerals  below  it,  where  the  title 
to  the  latter  has  been  severed  by  deed  from  that  to  the  surface."  1  A. 
&  E.  Encycl.  of  L.  875.  While  the  mere  occupancy  of  the  surface,  where 
a  severance  has  previously  been  accomplished,  does  not  of  itself  consti- 
tute adverse  possession  of  the  underlying  mineral,  there  is  room  for  a 
plausible  argument  that,  if  the  occupant  of  the  surface  claims  under  a 
deed  which  purports  to  convey  a  complete  title  to  the  entire  property,  his 
possession  should  be  characterized  by  the  terms  of  the  instrument  under 
which  he  holds,  and  he  should  be  deemed  to  be  asserting  dominion  over 


1911]  Coal  &  Mining  Co.  v.  Atkinson  et  al.  4-i9 

the  whole.  But  the  authorities  are  practically  uniform  in  holding  to 
the  contrary.  Any  use  to  which  the  surface  of  the  ground  may  be  put 
differs  so  widely  in  character  from  the  extraction  of  the  minerals  there- 
under— the  operations  are  so  disconnected  and  unrelated — that  a  posses- 
sion exercised  for  agricultural  purposes  only,  although  taken  and  held 
under  an  ordinary  deed  purporting  to  transfer  complete  ownership,  ought 
not  to  be  deemed  adverse  as  to  mining  rights  previously  severed  by  a 
reservation  in  a  conveyance  in  the  same  chain  of  title.  The  following 
cases  support  this  view :  Murray  v.  Allred,  ioo  Tenn.  100,  43  S.  W.  355, 
39  L.  R.  A.  249,  66  Am.  St.  Rep.  740;  Caldwell  v.  Copeland,  37  Pa.  427, 
78  Am.  Dec.  436;  Lulay  et  al.,  Appellants,  v.  Barnes,  172  Pa.  331,  34  Atl. 
52;  Gordon  v.  Park,  202  Mo.  236,  100  S.  W.  621,  119  Am.  St.  Rep.  802; 
Gordon  v.  Park,  219  Mo.  600,  117  S.  W.  1163;  Gill  v.  Fletcher,  74  Ohio 
295,  78  N.  E.  433,  113  Am.  St.  Rep.  962;  Catlin  Coal  Co.  v.  Lloyd, 
176  111.  275,  52  N.  E.  144;  Catlin  Coal  Co.  v.  Lloyd,  180  111. 
398,  54  N.  E.  214,  ^2.  Am.  St.  Rep.  216;  Steinman  v.  Jessee, 
108  Va.  567,  62  S.  E.  275 ;  Marvin  v.  Brewster  Iron  Min- 
ing Co.,  55  N.  Y.  538,  14  Am.  Rep.  322.  The  defendants  undertake  to 
distinguish  these  cases  upon  the  ground  that  here  the  occupant  of  the 
surface  had  no  knowledge  or  notice  of  the  existence  of  a  right  to  the 
minerals  apart  from  the  general  title  to  the  land.  Whether  they  had 
actual  information  on  the  subject  cannot  be  controlling.  The  deed  in 
which  the  severance  was  accomplished  by  a  reservation  of  the  mineral 
rights  was  duly  recorded.  While  the  record  itself  was  destroyed,  there 
remained  sufficient  annotations  in  the  indexes  to  advise  a  careful  examiner 
that  it  was  not  a  deed  in  the  ordinary  form.  An  investigation  of  the 
clue  thus  afforded  would  have  developed  the  actual  fact.  The  defend- 
ants derived  their  title  under  this  deed  and  cannot  under  these  circum- 
stances found  a  right  upon  ignorance  of  its  provisions.  Taylor  v.  Mitchell, 
58  Kan.  194,  48  Pac.  859;  Knowles  v.  Williams,  58  Kan.  221,  48  Pac.  856. 
The  principle  stated  is  really  determinative  of  the  controversy,  and  the 
specific  rulings  assigned  as  errors  really  present  different  aspects  of  the 
same  question  of  law.  Complaint  is  made  of  the  refusal  to  submit  a  spe- 
cial question  requiring  the  jury  (among  other  matters)  to  say  whether 
the  possession  of  the  defendants  was  adverse  as  to  the  plaintiff.  This 
presented  a  question  of  law.  The  findings  that  were  made  sufficiently 
determine  the  essential  facts  in  the  case,  and  the  general  verdict  was  in 
accordance  with  them.  In  submitting  a  question  concerning  the  posses- 
sion of  the  "premises  in  question,"  the  court,  over  the  objection  of  the 
defendants,  stated  that  the  only  property  in  dispute  was  the  coal  in  place. 
This  was  certainly  not  prejudicial,  as  it  tended  to  prevent  a  confusion 

of  the  issue.     Most  of  the  instructions  refused,  so  far  as  they  are  con- 
W.  &  M.— 29 


450  "Water  and  Mineral  Cases.  [Kansas 

sistent  with  the  rule  of  law  already  announced,  were  in  substance  cov- 
ered by  the  general  charge. 

The  court  was  asked  to  say  that,  if  the  mineral  rights  had  been 
reserved  by  the  railroad  company,  it  should  thereafter  have  paid  the 
taxes  if  it  claimed  to  own  the  mineral.  Instead,  the  jury  were  told  that 
prior  to  1897  there  was  no  provision  of  the  law  for  the  separate  taxation 
of  coal  in  place.  As  there  is  no  showing  that  the  coal  was  assessed  as 
such,  or  that  the  taxes  charged  against  the  land  were  increased  by  reason 
of  its  existence,  the  nonpayment  of  taxes  is  not  in  derogation  of  a  claim 
of  ownership  by  the  railroad  company.  An  instruction  was  given  to 
the  effect  that,  to  enable  the  defendants  to  recover  upon  the  theory  of 
an  adverse  occupation  for  15  years,  they  must  have  conducted  mining 
operations  continuously  for  that  period.  Whether  the  word  "contin- 
uously" should  have  been  used  need  not  be  determined,  since  it  is  con- 
ceded that  no  mining  on  the  land  was  ever  done  by  any  one  prior  to  the 
beginning  of  this  action.  An  instruction  that  the  sheriff's  deed  could  not 
affect  the  rights  of  the  railroad  company  because  it  was  not  a  party  to 
the  foreclosure  is  criticised  on  the  ground  that,  under  some  circumstances, 
the  deed  might  be  the  basis  of  a  claim  or  defense  against  the  company. 
We  think  the  language  fairly  meant  merely  that  the  company,  not  being 
a  party,  was  not  bound  by  the  judgment,  and  its  existing  rights  were  not 
changed  by  it.  Some  evidence  which  was  at  first  admitted  was  afterwards 
ruled  out.  The  defendants  assert  that  prejudice  to  them  resulted,  but 
we  see  nothing  in  the  record  to  indicate  this. 

The  judgment  is  affirmed.     All  the  justices  concurring. 


1911]  ."Washoe  Copper  Co.  v.  Jtjnila  et  al.  451 

WASHOE  COPPER  CO.  v.  JTJNILA  et  al.  (HALL  et  al.,  Interveners). 

[Supreme   Court   of   Montana,   April    17,    1911.] 

—  Mont.  — ,  115  Pac.  917. 

1.  Placer  Claim — Known  Vein. 

Where  a  known  vein  exists  within  the  ground  claimed  in  an  application  for 
placer,  it  remains  public  property  of  the  United  States. 

2.  Same — Knowledge. 

In  order  to  exclude  a  lode  from  a  placer  claim,  the  lode  must  have  been  known 
to  the  applicant  or  to  the  community  in  general  at  the  time  of  application. 

3.  Same — Evidence. 

Where  it  is  sought  to  exempt  a  particular  lode  from  a  placer  claim,  evidence  of 
the  character  and  extent  of  the  lode  as  divulged  by  operations  subsequent  to  the 
placer  application,  held  competent. 

4.  Same — Patent — Evidence. 

A  placer  patent  establishes  conclusively  that  the  ground  was  and  is  placer,  and 
evidence  that  placer  mining  operations  were  never  carried  on  is  immaterial. 

5.  Location   Certificate — Affidavit. 

A  declaratory  statement  (location  certificate)  which  does  not  contain  an  affidavit 
is  void,  and  the  receipt  in  evidence  of  a  certified  copy  is  erroneous. 

6.  Same — Evidence. 

A  copy  of  a  declaratory  statement  (location  certificate)  offered  to  prove  the  extent 
of  work  by  a  former  claimant,  is  objectionable  as  not  the  best  evidence. 

7.  Same — Evidence. 

In  an  action  to  determine  the  rights  of  those  operating  on  a  lode  within  a  placer 
claim,  a  copy  of  the  declaratory  statement  of  a  prior  location,  since  abandoned, 
is  immaterial  and  inadmissible. 

8.  Evidence — Admissions  of  Grantor. 

Declarations  of  a  former  owner  are  admissible  against  a  subsequent  holder  only 
when  made  against  interest  by  a  grantor  of  the  present  holder  while  holding  the 
title  in  controversy. 

9.  Same — Admissions  by  Grantor. 

Declarations  by  one  claiming  under  a  placer  claim  and  a  quartz  location,  whereby 
he  acknowledges  the  existence  of  a  known  lode  upon  the  placer  claim,  held  inad- 
missible to  defeat  the  record  title. 

10.  Constructive   Notice. 

A  void  instrument  cannot  impart  constructive  knowledge  to  any  one. 

11.  Stipulations    by    Counsel. 

A  stipulation  of  counsel  to  the  effect  that  the  interveners  have  acquired  whatever 
rights  were  obtained  by  specified  locations  does  not  relieve  them  from  proving  the 
validity  of  the  said  locations. 

Appeal  from  District  Court,  Silver  Bow  County;  John  B.  McClernan, 
Judge. 


NOTE. 

As  to  reservation  of  known  lodes,  see 


Cranes   Gulch  Min.   Co.  v.   Scherrer,  21 
Mor.  Min.  Rep.  549. 


452  Water  and  Mineral  Cases.  [Montana 

Action  for  damages  for  ores  extracted  and  for  an  injunction  by  the 
Washoe  Copper  Company  against  John  Junila  and  others,  W.  H.  Hall 
and  others  intervening. 

Judgment  for  defendants  and  interveners.  Plaintiff  appeals.  Reversed 
and  remanded. 

For  appellant — C.  F.  Kelley,  D.  Gay  Stivers  and  L.  O.  Evans. 

For  respondents — John  J.  McHatton. 

HOLLOWAY,  J.  This  action  was  brought  by  the  Washoe  Cop- 
per Company  against  Junila  and  others  to  recover  damages  for 
ores  extracted  from  ground  claimed  by  the  plaintiff,  and  for  an  injunction 
to  restrain  further  trespasses. 

The  plaintiff  alleges  its  ownership  in  and  to  an  irregularly  shaped  piece 
of  ground  in  the  N.  E.  j£  of  tne  S.  W.  J4  of  section  18,  township  3  N.,  of 
range  7  W.,  in  Silver  Bow  County.  The  defendants  answered,  admitting 
that  they  had  mined  in  a  portion  of  the  ground  claimed  by  plaintiff,  denied 
plaintiff's  ownership  of  such  portion,  alleged  that  they  were  merely  lessees 
of  others  who  claim  to  be  the  owners,  and  pleaded  affirmatively  that  plain- 
tiff's only  claim  of  ownership  to  the  ground  described  in  the  complaint  is 
by  virtue  of  mesne  conveyances  from  the  original  patentees  of  placer 
765 ;  that,  when  application  for  patent  to  such  placer  was  made,  there 
existed  within  the  boundaries  of  the  placer  claim  a  well-known  lode  or 
vein;  that  the  applicants  for  placer  patent  did  not  apply  for  patent  to 
such  lode  or  vein  and  the  same  was  excepted  from  the  placer  patent ;  and 
that  all  acts  done  by  defendants  were  done  upon  such  known  lode  or  vein. 
Thereafter  Hall  and  others  filed  a  complaint  in  intervention,  in  which 
they  set  forth  substantially  the  same  facts  as  those  pleaded  affirmatively 
by  the  defendants,  and  other  facts  to  which  reference  will  be  made  here- 
after. They  describe  particularly  the  ground  claimed  by  them,  and 
conclude  with  a  prayer  for  general  relief.  Issues  were  joined  upon  all  the 
affirmative  allegations  contained  in  the  answer  and  the  complaint  in  in- 
tervention, except  that  plaintiff  admitted  that  its  only  claim  of  ownership 
is  by  virtue  of  mense  conveyances  from  the  original  placer  patentees. 
The  trial  court  found  in  favor  of  the  defendants  and  interveners,  and 
rendered  a  decree  in  favor  of  interveners,  adjudging  them  to  be  the  own- 
ers of  the  ground  claimed  by  them.  From  the  decree  and  an  order  deny- 
ing it  a  new  trial,  the  plaintiff  has  appealed. 

1.  Error  is  predicated  upon  the  action  of  the  trial  court  in  over- 
ruling plaintiff's  demurrer  to  the  affirmative  defense  pleaded  in  the  answer 
of  defendants.  But  we  think  there  is  not  any  merit  in  the  contention ;  for 
even  assuming  that  sufficient  facts  are  not  pleaded  to  entitle  defendants  to 


1911]  Washoe  Coppee  Co.  v.  Junila  et  al.  453 

affirmative  relief — and  they  do  not  seek  any — still  the  facts,  which,  if 
true,  show  the  existence  of  a  known  vein  within  the  ground  claimed  by 
plaintiff  at  the  time  the  application  for  placer  patent  was  made,  state  a 
defense  to  plaintiff's  cause  of  action;  for,  if  such  known  vein  existed, 
it  remained  public  property  of  the  United  States,  and  plaintiff  will  not 
be  heard  to  object  to  defendants  carrying  on  mining  operations  upon  it. 
Reynolds  v.  Iron-Silver  Min.  Co.,  116  U.  S.  687,  6  Sup.  Ct.  601,  29 
L.  Ed.  774. 

2.  Complaint  is  made  of  the  action  of  the  court  in  admitting  evi- 
dence of  the  condition  upon  the  ground,  particularly  as  to  the  character 
and  extent  of  the  vein  disclosed  by  development  made  since  the  placer 
application.  The  question  involved  was  determined  by  this  court  adversely 
to  appellant  in  Noyes  v.  Clifford,  37  Mont.  138,  94  Pac.  842. 

3.  As  a  part  of  their  proof,  interveners  introduced  in  evidence  over 
the  objection  of  plaintiff,  a  certified  copy  of  the  declaratory  statement 
of  the  Morning  Star  quartz  lode  mining  claim.  This  declaratory  state- 
ment purports  to  have  been  made  by  Charles  Colbert  in  1877,  and  recites 
that  on  July  2,  1877,  Colbert  made  discovery  of  mineral-bearing  rock  in 
place  at  a  point  which  is  now  within  the  boundaries  of  the  ground 
claimed  by  plaintiff.  It  is  conceded  that  the  declaratory  statement  was  not 
verified  as  required  by  the  law  in  force  at  the  time ;  but  in  offering  the 
certified  copy  counsel  for  interveners  say :  "The  purpose  of  offering  this, 
may  it  please  the  court,  is  not  to  prove  title  under  the  location  itself,  but 
for  the  purpose  of  showing  that  this  vein  was  known  to  exist  at  the  time 
when  he  located  it  by  Charles  Colbert,  and  to  show  what  was  done  by 
Charles  Colbert  and  others  with  reference  to  working  the  vein."  In 
O'Donnell  v.  Glenn,  8  Mont.  248,  19  Pac.  302,  this  court  held  that  a  declar- 
atory statement  which  does  not  contain  the  required  affidavit  is  void,  and 
that  decision  has  been  followed  uniformly  since.  See  Hickey  v.  Anaconda 
Copper  Min.  Co.,  33  Mont.  46,  81  Pac.  806.  Since  the  Morning  Star  de- 
claratory statement  was  void,  the  receipt  in  evidence  of  a  certified  copy 
of  it  was  error. 

It  is  apparent  from  the  statement  of  counsel  made  when  the  copy 
was  offered  that  the  purpose  of  introducing  it  was  to  show  general  knowl- 
edge on  the  part  of  the  people  of  the  community  that  a  vein  existed  within 
the  boundaries  of  the  placer  prior  to  the  application  for  patent,  presuma- 
bly upon  the  theory  that  proof  of  such  condition  in  1877  would  tend  in 
some  degree  to  establish  knowledge  of  a  similar  condition  when  the  appli- 
cation for  placer  patent  was  made  in  February,  1880.  That  a  void  instru- 
ment cannot  impart  constructive  knowledge  to  any  one  is  elementary ;  and 
the  fact  that  the  trial  court  admitted  this  evidence,  and  that  in  finding 
No.  1  reference  is  made  to  the  Morning  Star  location,  and  the  further 


454  Water  and  Mineral  Cases.  [Montana 

fact  that  the  court  did  not  find  especially  that  the  placer  patentees  had 
actual  knowledge  of  the  existence  of  the  vein  at  the  time  when  they  ap- 
plied for  patent,  but  only  that  they  had  such  knowledge,  actual    or    con- 
structive,  seems    to   justify   the   conclusion    that    the    court   must    have 
attached  some  importance  to  the  contents  of  this  declaratory  statement. 
In  order  to  exclude  a  lode  from  a  placer  claim,  the  lode  must  have 
been  known  at  the  time  the  application  for  placer  patent  was  made ;  but 
actual  knowledge  on  the  part  of  the  placer  applicant  is  not  absolutely  es- 
sential.    In  Iron-Silver  Min.  Co.  v.  Mike  &  Starr  G.  &  S.  Min.  Co.,  143 
U.  S.  394,  12  Sup.  Ct.  543,  30  L.  Ed.  201,  it  is  said:    "It  is  enough  that 
it  be  known,  and  in  this  respect,  to  come  within  the  intent  of  the  statute, 
it  must  either  have  been  known  to  the  applicant  for  the  placer  patent  or 
known  to  the  community  generally,  or  else  disclosed  by  workings  and  ob- 
vious to  any  one  making  a  reasonable  and  fair  inspection  of  the  premises 
for  the  purpose  of  obtaining  title  from  the  government."     This  rule  has 
been  followed  in  the  mining  states  generally.     Brownfield  v.   Bier,    15 
Mont.  403,  39  Pac.  461.     It  seems  a  fair  inference  from  this  record  that 
the  placer  patentees  who  denied  actual  knowledge  of  the  existence  of  a 
vein  within  the  boundaries  of  their  placer  claim  at  the  time  of  their  ap- 
plication for  patent  were  charged  with  knowledge  of  the  existence  of  such 
vein  by  the  evidence  furnished  by  this  declaratory  statement. 

In  so  far  as  the  copy  of  the  declaratory  statement  was  offered  to 
prove  the  extent  or  character  of  the  work  done  by  Colbert,  it  was  subject 
to  the  objection  that  it  was  not  the  best  evidence,  in  addition  to  the  other 
objection  considered. 

The  immateriality  of  the  evidence  is  also  apparent,  since  neither 
plaintiff  nor  interveners  claimed  under  the  Morning  Star  location.  In 
fact,   the   evidence    shows    that   that   claim   was    abandoned. 

4.  The  interveners  also  introduced  in  evidence,  over  the  objection  of 
plaintiff,  a  deposition  of  Charles  Colbert,  taken  in  1895,  in  an  action  en- 
titled Montana  Central  Railway  Company  v.  Midgeon  et  al.  The  deposi- 
tion was  not  taken  in  a  case  in  which  any  of  the  parties  in  this  action  were 
interested,  but  it  is  contended  that  it  was  competent  to  prove  by  it  declar- 
ations made  by  Colbert  to  the  effect  that  there  was  a  known  lead,  lode, 
or  vein  within  the  boundaries  of  placer  765  at  the  time  the  application  for 
placer  patent  was  made,  and  this  upon  the  theory  that  at  the  time  the 
declarations  were  made  Colbert  owned  the  placer  ground  now  claimed 
by  the  plaintiff,  and  that  the  declarations  were  against  interest. 

If  the  admission  of  these  declarations  can  be  justified  at  all,  it  must 
be  done  under  the  provisions  of  section  7866,  Rev.  Codes,  as  follows: 
"Where,  however,  one  derives  title  to  real  property  from  another,  the 
declaration,  act  or  omission  of  the  latter,  while  holding  the  title  in  relation 


1911]  Washoe  Copper  Co.  v.  Junila  et  al.  455 

to  the  property  is  evidence  against  the  former."  This  section  is  but  de- 
claratory of  the  common  law.  It  does  not  add  to  or  subtract  from  the 
rule  as  it  existed  prior  to  the  adoption  of  the  statute.  Frink  v.  Roe,  70 
Cal.  296,  1 1  Pac.  820.  In  this  last  case  the  California  court  said :  "Any 
declarations,  acts,  or  omissions  of  the  grantor  while  holding  the  title  in 
relation  to  the  property,  and  which  could  have  been  introduced  against 
him  while  an  owner,  may  be  introduced  against  his  grantee — nothing 
more."  In  1  Jones  on  Evidence,  §  241,  the  reason  for  the  rule  is  given 
as  follows:  "The  principle  upon  which  such  evidence  is  received  is 
that  the  declarant  was  so  situated  that  he  probably  knew  the  truth,  and 
his  interests  were  such  that  he  would  not  have  made  the  admissions  to 
the  prejudice  of  his  title  or  possession,  unless  they  were  true.  The 
regard  which  one  so  situated  would  have  to  his  interest  is  considered  suffi- 
cient security  against  falsehood."  See,  also,  2  Wigmore  on  Evidence,  § 
1080. 

However,  when  a  declaration  of  this  character  is  offered,  the  party  mak- 
ing the  offer  must  show  (a)  that  it  was  made  while  the  declarant  was 
holding  the  title  to  the  property  in  controversy;  (b)  that  the  declarant 
was  in  fact  the  grantor  of  the  party  against  whom  the  declaration  is  offer- 
ed; and  (c)  that  the  declaration  was  against  interest.  The  only  evidence 
in  this  record  touching  Colbert's  title  to  any  portion  of  placer  765  is  fur- 
nished by  a  deed  from  Marsh  and  Nichols,  the  original  placer  patentees, 
to  Emory,  Tong,  and  Colbert,  dated  April  19,  1880,  and  conveying  the 
following  described  property:  "All  that  portion  of  lot  numbered  seven 
in  section  eighteen,  T.  3  N.  R.  7  W.,  lying  north  of  a  line  drawn  parallel 
with  the  south  boundary  line  of  said  Lot  No.  7,  10.91  chains  distant  there- 
from ;  excepting  that  piece  conveyed  to  George  W.  Maston."  It  appears 
sufficiently  that  lot  7,  mentioned  above,  is  placer  765 ;  but,  since  there  is 
not  any  description  whatever  given  in  this  record  of  the  portion  which 
had  theretofore  been  conveyed  to  Maston,  it  is  impossible  to  know  wheth- 
er Colbert  ever  owned  the  land  in  controversy,  whether  he  owned  it  at 
the  time  the  declarations  were  made  or  whether  plaintiff  derived  its  in- 
terest from  Emory,  Tong,  and  Colbert,  or  is  the  successor  in  interest  of 
Maston.  Under  the  pleadings,  it  was  unnecessary  for  plaintiff  to  prove 
its  chain  of  title  from  the  original  placer  patentees ;  and,  since  the  inter- 
veners had  the  burden  of  showing  that  Colbert  was  the  grantor  of  plain- 
tiff and  failed,  the  declarations  made  by  Colbert  were  hearsay  and  inad- 
missible against  the  plaintiff,  under  the  provisions  of  the  code  section 
cited  above.    Harrell  v.  Culpepper,  47  Ga.  635. 

But  the  declarations  were  inadmissible  for  a  further  reason.  What- 
ever interest  Colbert  acquired  in  placer  765  he  retained  until  1900. 
It    appears,    also,    that    he    was    one    of    the    locators    of    the    Green 


456  Watek  and  Mineral  Cases.  [Montana 

Copper  quartz  claim,  which  location  it  is  alleged  in  the  complaint  in  inter- 
vention was  made  in  1891,  and  it  is  fairly  inferable  that  whatever  interest, 
if  any,  he  acquired  in  the  quartz  location  he  retained  until  after  1895. 
If  we  assume,  then,  that  the  portion  of  the  placer  conveyed  to  Colbert 
included  the  ground  now  claimed  by  plaintiff,  and  that  the  Green  Copper 
was  a  valid  quartz  location,  neither  of  which  appears  as  a  fact  from  this 
record,  then  we  are  confronted  with  this  situation :  Colbert  while  claim- 
ing a  piece  of  ground  as  placer,  and  also  claiming  a  portion  of  the  same 
under  a  quartz  location,  makes  a  declaration  against  his  placer  interest 
and  in  favor  of  his  quartz  claim ;  that  is  to  say,  his  declaration  is  to  the 
effect  that  there  was  a  vein — the  one  upon  which  the  Green  Copper  was 
located — within  his  portion  of  the  placer  at  the  time  the  application  for 
the  placer  patent  was  made.  The  effect  of  this  declaration,  if  true,  is 
to  prove  that  the  extent  of  his  placer  claim  is  less  than  it  purports  to  be ; 
and,  having  conveyed  away  all  that  his  placer  purports  to  have  been,  the 
direct  effect  of  this  declaration  is  to  destroy  title  to  that  portion  of  the 
placer  crossed  by  the  vein  and  a  strip  of  25  feet  on  either  side  thereof. 
In  other  words,  his  declaration  destroys  the  record  title  to  that  portion  of 
the  placer.  In  Dodge  v.  Freedman's  Savings  &  Trust  Co.,  93  U.  S.  379, 
23  L.  Ed.  920,  the  Supreme  Court  of  the  United  States  said:  "Such 
declarations  are  competent  only  to  show  the  character  of  the  possession 
of  the  person  making  them,  and  by  what  title  he  holds,  but  not  to  sustain 
or  to  destroy  the  record  title." 

5.  In  a  number  of  instances  the  court  permitted  the  interveners 
to  show,  over  plaintiff's  objection,  that  there  had  never  been  any  placer 
mining  carried  on  on  placer  765.  The  evidence  was  altogether  immaterial. 
The  placer  patent  to  Marsh  and  Nichols  established  conclusively  the  fact 
that  the  ground  was  and  is  placer ;  and  the  effect  of  the  patent  cannot  be 
overcome  by  evidence  that  placer  mining  operations  were  never  carried 
on.  Dahl  v.  Raunheim,  132  U.  S.  260,  10  Sup.  Ct.  74,  33  L.  Ed.  324; 
Butte  &  Boston  Min.  Co.  v.  Sloan,  16  Mont.  97,  40  Pac.  217. 

6.  The  trial  court  found  that  at  the  date  of  the  application  for 
placer  patent  there  was  a  well-known  lode  within  the  boundaries  of 
placer  765  disclosed  in  workings  at  the  Morning  Star  shaft;  that  the 
vein  was  such  as  to  except  it  from  the  general  grant  of  the  placer  patent, 
under  section  2333,  U.  S.  Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  1433).  The 
complaint  in  intervention  alleges  that  in  June,  1889,  Henry  L.  Haupt  made 
discovery  of  mineral-bearing  quartz  in  place  within  the  boundaries  of 
placer  765,  and  upon  the  same  lode  or  vein  which  was  known  to  exist  at 
the  time  application  for  placer  patent  was  made;  that  Haupt  made  and 
completed  his  location,  designating  it  the  Sunbury  quartz  lode  mining 
claim.    It  is  also  alleged  that  in  January,  1891,  Ginsberg  and  others  made 


1911]  Washoe  Coppeb  Co.  v.  Junila  et  al.  457 

discovery  of  mineral-bearing  quartz  in  place  upon  the  same  vein  within 
the  boundaries  of  placer  765 ;  that  they  made  and  completed  the  location 
of  the  Green  Copper  quartz  lode  mining  claim ;  that  by  mesne  conveyances 
the  interveners  became  the  successors  in  interest  of  the  locators  of  the 
Sunbury  and  Green  Copper  claims,  and  thereafter  filed  for  record  an 
amended  declaratory  statement  of  the  Green  Copper  claim,  "and  ever 
since  have  held  and  owned  the  property  under  said  amended  declaratory 
statement."  All  these  allegations  were  denied.  Upon  the  trial,  the  inter- 
veners did  not  offer  any  evidence  in  support  of  the  allegations  above.  It 
is  insisted,  however,  by  counsel  for  interveners  that  they  were  relieved 
from  making  such  proof  by  a  stipulation  entered  into  by  counsel  for  the 
respective  parties  at  the  trial,  as  follows:  "First,  that  the  plaintiff  has 
acquired  whatever  right  was  given  by  [the  placer]  patent  to  the  original 
patentees  to  the  premises  that  are  herein  in  dispute ;  second,  that  the  inter- 
veners have  acquired  whatever  right  was  obtained  by  the  location  of  the 
Green  Copper,  the  Sunbury,  and  the  Green  Copper  as  amended." 

In  finding  No.  8  the  trial  court  accepted  interveners'  theory,  and  de- 
creed to  them  the  vein  and  25  feet  on  each  side  for  1,500  feet,  and  thereby 
carved  out  of  the  ground  claimed  by  plaintiff  a  parcel  50  feet  wide  and 
about  1,500  feet  long.  That  the  stipulation  is  not  open  to  the  construction 
given  it  is  apparent.  It  is  an  admission  by  plaintiff  that  interveners  ac- 
quired whatever  rights  were  obtained  by  the  locators  of  the  Sunbury 
and  Green  Copper  claims,  and  the  Green  Copper  as  amended ;  but  it  does 
not  admit  that  any  one  of  these  claims  was  a  valid  location,  or  that  the 
locators  ever  acquired  any  rights  whatever  by  virtue  of  them.  The  stipu- 
lation did  not  go  further  than  to  relieve  interveners  from  deraigning  their 
title  after  proving  valid  locations  of  those  claims.  Uoon  the  record  be- 
fore us,  interveners  were  not  entitled  to  affirmative  relief.  Assuming  the 
existence  of  a  known  lode  within  the  placer  at  the  time  the  application 
for  patent  was  made,  such  lode  is  open  to  location  at  this  time,  so  far  as 
we  are  informed  by  this  record ;  and,  if  so,  the  trial  court  cannot  by  its 
decree  preclude  the  plaintiff  or  any  one  else  from  locating  it. 

As  said  above,  the  interveners  apparanetly  based  their  claim  upon  the 
Green  Copper  location  as  described  in  their  amended  declaratory  state- 
ment; but  they  pleaded  that  Haupt  in  1889  located  the  Sunbury  claim, 
while  the  Green  Copper  was  not  located  until  1891,  and  the  evidence  dis- 
closes that  the  Green  Copper  discovery  shaft  is  within  the  boundaries  of 
the  Sunbury  claim ;  that,  if  the  Sunbury  was  a  valid  location,  it  is  difficult 
to  understand  how  they  can  predicate  any  right  upon  the  Green  Copper 
claim,  or  the  same  claim  as  described  in  their  amended  declaratory  state- 
ment. 


458  Wateb  and  Minebal  Cases.  [Montana 

Other  questions  are  suggested  in  the  briefs,  but  they  are  not  necessary 
to  a  determination  of  the  cause  upon  this  appeal,  and  may  not  arise  again ; 
but  for  the  errors  heretofore  considered  the  judgment  and  order  are  re- 
versed and  the  cause  is  remanded  for  a  new  trial. 
Reversed  and  remanded. 

BRANTLY,  C.  J.,  and  SMITH,  J.,  concur. 


1908] 


C,  B.  &  Q.  E.  Co.  v.  Boaed  of  Supeevisoks. 


459 


CHICAGO  B  &  a.  R.  CO.  v.  BOARD  OF  SUPERVISORS  OF  APPANOOSE 
'  "  COUNTY. 

[Circuit  Court  S.  D.  Iowa,  E.  D.,  July  27,  1908.] 


170  Fed.  665. 

1  Constitutional   Law — Drainage  Statutes. 

A  statute  authorizing  the  board  of  supervisors  of  a  county  to  create  a  drainage 
district  appoint  commissioners  to  classify  the  lands  benefited,  and  assess  the  bene- 
fits Sin-  the  owners  notice  of  the  time  and  place  for  hearing  the  report  after 
which  levfes  are  to  be  made  to  pay  expenses,  is  consistent  with  the  Constitution  of 
Illinois. 

2  Same— Crossing   Railroad   Right  of  Way— Damages  for   Bridges. 

A  statute  providing  that  a  railroad  company  shall  make  a  ditch  or  channel 
determined  Vpon  for*  drainage  purposes  across  its  right  of  way  the .expense 
thereof  beins  allowed  the  companv  as  its  damages,  but  that  it  shall  be  auowea  no 
damage  on  Lcount  of  bridges  which  it  might  be  compelled  to  build,  is  not  uncon- 
stitutional. 


Legisla- 


CASE  NOTE. 

Constitutional     Power     to    Establish 
Drains  and  Drainage  Districts. 

I.  General  Power,  460. 
A.     In    Discretion    of 
ture,  460. 
By  General  Laws,  462. 
By  Special  Laws,  462. 

1.  General  Rule,  462. 

2.  Legislature   Judge  of    Ne- 
cessity for,  463. 

By  Implication    and  Recog- 
nition, 464. 


B. 
C. 


D. 


II. 


With    Regard    to    Certain  Con- 
stitutional Provisions,  464. 
A.     Impairing      Obligations      of 
Contract,  464. 
Due  Process  of  Law,  465. 

1.  What  Is  Due  Process,  465. 

2.  Injunction  Lies  if    Denied, 
465. 

Equal    Rights    and     Privi- 
leges, 466. 
Guaranty  of  Jury  Trial,  466. 

1.  May  Be  Denied,  466. 

2.  Contra,  466. 
Equal   and    Uniform    Taxa- 
tion, 466. 

Taking    Private      Property 

for  Public  Use,  467. 
Provisions  Regarding  Elec- 
tions, 468. 
1      General  Laws  Do  Not  Ap- 
ply, 468. 
2.     Property  Qualification,  469. 
3*.     Cumulative  Voting,  469. 


B. 


D. 


E. 
F. 
G. 


H.    Creation    of    Corporation 
by  Special  Laws,  470. 

I.      Loan  of  Credit,  470. 

J.      Guarantying     City's    Right 
to  MakeImprovements,470. 

K.    State  Engaging  in  Internal 
Improvements,  471. 
III.  Power  to  Delegate  Authority, 

471-  T. 

A.     May  Act  Direct  orDelegate, 

471. 

1.  General  Rule,  471. 

2.  Legislature     to     Prescribe 

Mode  and  Agency,  472. 
IB.     May  Require  Judicial   In- 
vestigation, 473. 
B.     May  Delegate  to  any  Tribu- 
nal or    Officer   or   Form 
Districts,  473. 

1.  General  Rule,  473. 

2.  To  Commissioners,  474. 

3.  To  Corporations,  474. 
4      To  Districts,  475. 

5.  To  Elected  Officers,  476. 

6.  To  Electors,  477. 

7.  To  Police  Juries,  477. 

8      To    Minor    Municipalities, 

477. 
9.     To  Supervisors,  477. 
IV.  Power  to  Dissolve,  478. 

As  to  the  legal  character  of  drainage 
districts,  see  note  to  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, ante,  p.  107. 

As  to  source  of  legislative  power 
to  drain  lands,  see   note  to  Coffman  v. 


460 


Water  and  Mineral  Cases.        [United  States 


3.  Federal   Courts — Construction   of  State   Statutes. 

The  federal  courts  will  not  consider  the  construction  of  statutes  by  state 
courts  or  Ihe  consistency  thereof  with  the  state  Constitution,  where  made  before 
any  rights  or  burdens  involved  in  the  litigation  were  imposed. 

4.  Drainage  a  Public  Use — Assessments  for  Benefits. 

The  drainage  of  swampy,  marshy,  and  overflowed  lands  is  a  matter  of  public 
health,  convenience,  and  welfare  for  which  the  legislature  may  provide,  and 
distribute  the  expense  among  those  who  will  be  benefited  as  much  or  more  than 
the  amount  assessed  against  them. 

5.  Drainage — Rights  of  Railroad  Companies. 

The  rights  of  a  railroad  company  to  bridge  over  a  natural  water  course 
crossing  its  right  of  way  are  not  superior  to  those  of  the  public  to  use  the  water 
course  for  draining  lands. 


St.   Frances  Drainage  District,   p.  , 

vol.  3,  this  series. 

As  to  whether  action  in  regard  to 
drainage  is  legislative  or  judicial,  see 
note  to  Smith  v.  Claussen  Park  Drainage 

&   Levee   District,   p.  ,   vol.   2,   this 

series. 

As  to  notice  required  as  due  process 
of  law,  see  note  to  Ross  v.  Board  of 
Supervisors  of  Wright  County,  ante,  p. 
358. 

As  to  public  benefit  and  interest  must 
be  involved,  see  note  to  Campbell  v. 
Youngson,  p.  ,  vol.  2,  this  series. 

As  to  inclusion  or  exclusion  of  lands 
in  drainage  district,  see  note  to  Hull  v. 
Sangamon  River  Drainage  District,  post, 
p.  593. 

As  to  powers  of  commissioners,  etc., 
see  note  to  Seibert  v.  Lovell,  post,  p.  261. 

As  to  conclusiveness  of  decision  of 
drainage  commissioners  and  other  offi- 
cers, see  note  to  Chapman  &  Dewey  Land 
Co.  v.  Wilson,  p.  ,  vol.  2,  this  series. 

As  to  collateral  attack  on  drainage 
proceedings,    see   note     to     Chapman     & 

Dewey  Land  Co.  v.  Wilson,  p.  ,  vol. 

2,  this  series. 

As  to  waiver  of  irregularities  in 
drainage  proceedings,  see  note  to  Smith 
v.  Claussen  Park  Drainage  &  Levee  Dis- 
trict,  p.  ,  vol.  2,  this  series. 

As  to  bonds  of  drainage  districts,  see 
note  to   Sisson  v.   Board   of   Supervisors 

of  Buena  Vista  County,  p.  ,  vol.  3, 

this  series. 

For  historical  review  of  reclamation 
districts    in    California,    see    People    ex 


rel.    Chapman    v.    Sacramento    Drainage 
District,  ante,  p.  107. 

I.     General  Power. 

A.      In  Discretion  of  Legislature. 

The  legislature  has  the  power  to  pro- 
vide for  the  reclamation  of  overflowed 
lands  and  to  impose  a  tax  thereupon  in 
proportion  to  the  estimated  special  bene- 
fits which  those  lands  will  receive  from 
the  work  done.  People  ex  rel.  Chapman 
v.  Sacramento  Drainage  District,  155 
Cal.  373,  Pac.  207,  ante,  p.   107. 

Drainage  laws  are  close  akin  to  sewer 
laws.  The  private  property  that  is 
benefited  by  sewers  can  be  charged  for 
the  benefits  it  receives  against  the 
wishes  of  the  owner.  So  also  can  ag- 
ricultural land  be  charged  for  benefit 
conferred  upon  it.  It  is  competent  for 
the  state  to  raise  up  governmental  agen- 
cies for  enforcement  of  its  police  power. 
The  agency  thus  created  is  an  arm  and 
political  subdivision  of  the  state  and 
exercises  prescribed  functions  of  govern- 
ment. 

Federal. — Wurts  v.  Hoagland,  114  U. 
S.  606,  5  Sup.  Ct.  1086,  29  L.  Ed.  229 
( 1884) ;  Fallbrook  Irr.  Dist.  v.  Bradley, 
164  U.  S.  112,  17  Sup.  Ct.  66,  41  L.  Ed. 
369   (1896). 

Arkansas. — Cribbs  v.  Benedict,  64  Ark. 
555,  44  S.  W.  707    (1897). 

Illinois. — Badger  v.  Inlet  Drainage 
District,  141  111.  540,  31  N.  E.  170 
(1892). 


1908] 


C,  B.  &  Q.  K.  Co.  v.  Board  of  Supervisors. 


461 


6.  Police  Power — Drainage  of  Lands  Is  Within. 

'whatever  promotes  the  public  health,  safety,  convenience,  and  welfare, 
limited  to  certain  lines,  is  an  exercise  of  the  police  power  for  which  property 
Shout  condensation  Ca'n  be  taken,  and  expense  and  burdens  be  imposed  without 
allowance  of  the  equivalent  by  way  of  damages. 

7.  Drainage— Findings  as  to  Public  Health,  Convenience,  and  Welfare  Con- 

clusive. ,    , 

Findings  of  a  board  of  supervisors  as  to  the  necessity  for  a  new  channel  for 
a  stream  for  purposes  of  drainage,  to  the  end  that  the  public  health  conven lence 
and  welfare  would  be  promoted?  and  as  to  the  location,  benefits,  and  depth  and 
breadtn  of  thJnew  channel,  are  findings  of  fact  with  which  the  courts  have  nothing 
to   do. 

8.  Same — Excessive   Benefits. 

The  finding  of  a  board  of  supervisors  that  a  new  channel  for  a  stream  is 
necessarv  for°  purposes  of  drainage,  which  compels  a  railroad  company  to  erect  a 
new  bridge  within  a  mile  of  an  old  one,  and  assessing  $10,000  for  benefits  from 
the  drainage  cannot,  considered  on  the  evidence,  be  held  void. 


Indiana.— Zigler   v.   Menges,    121    Ind. 
99,  22  N.  E.  782,  16  Am.  St.  Rep.  357 

(1889). 

Kansas.— Roby  v.  Shunganunga  Drain- 
age   Dist.,    17    Kan.    754,    95    Pac.    399 

(1908). 
Missouri. — Mound  City  Land  &   Stock 

Co.   v.  Miller,    107    Mo.   240,   70    S.   W. 

721,  60  L.    R.  A.  190,  94  Am.  St.  Rep. 

727    (1902). 

Ohio.— Taylor  v.  Crawford,  72  Ohio  St. 

560,    74   n/e.    1065,   69    L.   R.   A.    805 
(1905). 
Wisconsin. — Donnelly     v.     Decker,     58 

Wis.   461,   17   N.  W.   389,   46  Am.  Rep. 

637    (1883). 

The  Statute  of  1905   (p.  443),  creating 

the  Sacramento  and  San  Joaquin  Rivers 
taining  land  situated  in  ten  different 
counties,  for  the  purpose  of  promoting 
drainage  therein,  providing  for  the  elec- 
tion of  commissioners  with  various 
duties  and  powers,  and  also  for  levying 
of  assessments  on  lands  benefited  to  pay 
the  cost  of  the  reclamation  thereof,  and 
creating  a  board  of  river  control  with 
rowers  for  straightening  and  controlling 
the  Sacramento  and  San  Joaquin  Rivers 
is  not  unconstitutional.  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, 155  Cal.  373,  103  Pac.  207,  ante,  p. 
107. 

In  the  absence  of  constitutional  pro- 
hibition, the  legislature  may  arbitrarily 
create,  abolish  or  change  the  boundaries 


of  sanitary  districts.  City  of  Chicago 
v.  Town  of  Cicero,  210  111.  290,  71  N.  E. 
356    (1904). 

The  power  of  the  legislature  to  create 
districts  for  the  purpose  of  drainage  and 
to  provide  for  assessment  to  be  made 
therein  by  the  drainage  board,  to  pay  for 
such  improvements,  cannot  be  success- 
fully questioned.  Ross  v.  Supervisors, 
128*  Iowa  427,  104  N*.  W.  506,  1  L.  R.  A. 
(N.  S.)  431  (1905);  Roby  v.  Shungan- 
unga Drainage  Dist.,  77  Kan.  754,  95 
Pac.  399    (1908). 

The  character  of  a  reclamation  district 
is  that  of  a  public  corporation,  and  as 
such  can  be  created  in  the  manner  pro- 
vided by  general  law  and  also  by  special 
act  or  by  implication  of  law.  Legisla- 
tive recognition  of  a  corporation  is  in 
many  cases  sufficient  proof  of  its  exist- 
ence. Powers  or  privileges  may  be 
conferred  or  duties  enjoined  of  such  a 
character  that  a  corporation  would  be 
required,  and  from  such,  a  corporation 
must  be  implied.  People  v.  Reclamation 
Dist.  No.   108,  53  Cal.  346    (1879). 

The  reclaiming  of  vast  bodies  of  land 
may  justly  be  regarded  as  a  public  im- 
provement of  great  magnitude  and  the 
utmost  importance  to  the  community, 
and  a  plan  to  divide  the  territory  to  be 
reclaimed  into  districts,  and  assessing 
the  cost  of  improvements  on  land  to  be 
benefited,  is  within  the  power  of  the  leg- 
islature.    Hager  v.   Supervisors   of  Yolo 


462 


Water  and  Mineral  Cases.        [United  States 


9.      Drainage   Districts — Parties  in   Interest. 

A   holding   company  of   several   railroads   has   no   interest   in   cases   arising  from 
drainage  assessment   levied  against   the   sub-company. 

Appeal  to  state  district  court  from  proceedings  resulting  in  assessments 
for  drainage  purposes  and  from  there  transferred  to  federal  court. 

For  appellant — H.  H.  Trimble. 

For  appellee — Clarence  A.  Baker. 

SMITH  McPHERSON,  District  Judge.     The  Chariton  River  runs 
from  north  to  south  across  Appanoose  County,  Iowa,  its  course  being 


County,  47  Cal.  222  (1874)  ;  Turlock  Irr. 
Dist.  v.  Williams,  76  Cal.  360,  18  Pac. 
379    (1888). 

Public  health,  convenience,  and  wel- 
fare mean  the  effect  upon  the  people 
of  the  particular  vicinity  concerned.  In 
contrast  to  the  benefits  of  the  few,  it 
means  those  things  which  benefit  the 
many.  It  is  within  the  power  of  the 
legislature  to  further  the  public  health, 
convenience  or  welfare  by  the  enact- 
ment of  drainage  laws  or  by  providing 
for  the  protection  of  property  by  dykes 
and  levees.  State  ex  rel.  Harris  v.  Han- 
son, 80  Neb.  724,  115  N.  W.  294   (1008). 

As  to  legislative  power  to  determine 
extent  of  district,  see  note,  II,  A,  to 
Hull  v.  Sangamon  River  Drainage  Dis- 
trict, post,  p.  595. 

As  to  establishment  of  drain  or  dis- 
trict being   legislative   act,   see   note,   I, 

A,  to  Smith  v.  Claussen  Park  Drainage 

&  Levee  District,   p.   ,   vol.   2,   this 

series. 

As  to  expediency  of  drainage  being  a 
question  for  the  legislature,   see  note  I, 

B,  to  Smith  v.  Claussen  Park  Drainage 

&  Levee   District,   p.   ,   vol.   2,   this 

series. 

As  to  source  of  title  of  lands  being 
immaterial,  see  note  IV,  A,  to  Hull  v. 
Sangamon  River  Drainage  District,  post, 
p.   601. 

B.     By    General    Laws. 

The  drainage  of  large  tracts  of  swamp 
and  overflowed  or  submerged  land  is  a 
subject  of  such   public   and  general   in- 


terest that  the  legislature  may  provide 
for  it  by  general  enactment,  and  such 
provision  may  include  the  creation  of 
local  political  organizations  to  serve  as 
agencies  for  the  accomplishment  of  the 
desired  end.  Neal  v.  Van  Sickel,  72 
Neb.   105,   100  N.  W.  200    (1904). 

Under  constitutional  provision  that 
general  laws  may  be  passed  permitting 
the  owners  or  occupants  of  agricultural 
lands  to  construct  and  maintain  for  the 
drainage  thereof  necessary  drains, 
ditches,  and  dykes  upon  the  lands  of 
others,  under  proper  restrictions  and 
with  just  compensation,  but  no  special 
laws  shall  be  enacted  for  that  purpose, 
the  legislature  has  power  to  enact  gen- 
eral laws  for  such  drainage  including 
the  lands  of  nonconsenting  owners,  and 
to  levy  assessments  for  the  benefits 
resulting  therefrom.  In  re  Tuthill,  50 
N.  Y.   Supp.  410    (1898). 

C.      By  Special   Laws. 

1.      General    Rule. 

Expressions  will  be  found  in  cases 
where  reclamation  districts  have  been 
designated  corporations  for  municipal 
purposes,  or  public  corporations,  or 
corporations  for  public  purposes,  but 
these  were  convenient  phrases  of  desig- 
nation and  descriptive  rather  than  ju- 
dicial declarations  as  to  the  nature  and 
character  of  these  agencies.  Conceding 
a  reclamation  district  to  be  a  corpora- 
tion at  all,  it  is  not  a  corporation  for 
municipal  purposes,  within  the  meaning 


1908]         C,  B.  &  Q.  E.  Co.  v.  Boaed  of  Supekvisoks. 


463 


tortuous  and  winding  through  the  valley,  which  is  from  two  to  three 
miles  in  width.  The  stream  is  subject  to  overflow,  at  times  covering 
practically  all  the  bottom  lands.  The  Chicago,  Burlington  &  Quincy 
Railroad  Company  owns  two  lines  of  railroad,  crossing  said  bottom 
lands  in  an  easterly  and  westerly  direction,  two  miles  more  or  less 
apart,  crossing  the  river  on  bridges  built  several  years  since,  and  across 
the  bottom  land  on  embankments,  and  at  one  or  more  depressions  on 
trestles.  One  of  these  roads  is  known  as  the  Keokuk  &  Western  Rail- 
road, and  the  other  as  the  Chicago,  Burlington  &  Kansas  City  Railroad. 
In  1904  the  Iowa  legislature  enacted  a  statute  (chapter  68,  p.  61,  Acts 
30th   Gen.   Assem.)    entitled,   "An   act   to   promote   the   public   health, 


of  the  Constitution  prohibiting  the 
creation  of  corporations  for  municipal 
purposes  by  special  laws,  nor  is  it  a 
private  corporation  within  the  meaning 
of  the  Constitution  prohibiting  the  cre- 
ation of  private  corporations  by  special 
laws,  and  therefore  should  they  be  held 
to  be  corporations,  they  are  corporations 
in  a  class  by  themselves,  and  the  general 
powers  of  the  legislature  for  their 
creation,  organization,  and  control  are 
in  no  wise  limited  by  the  Constitution. 
People  ex  rel.  Silva  v.  Levee  Dist.  No. 
6  of  Sutter  County,  131  Cal.  30,  63  Pac. 
676    (1900). 

Reclamation  districts  are  not  munici- 
pal corporations  within  the  purview  of 
the  provision  of  the  Constitution  pro- 
hibiting the  creation  of  corporations  by 
special  acts.  They  are  agencies  of  the 
state,  organized  to  perform  a  certain 
work,  to  which  the  state  has  given  a 
certain  degree  of  discretion  in  making 
the  improvements  contemplated,  and 
therefore  they  may  be  created  by  special 
act.  Reclamation  Dist.  No.  70  v.  Sher- 
man, 11  Cal.  App.  399,  105  Pac.  277 
(1909). 

The  legislature  may  by  act  or  repeal 
of  an  act  dissolve  a  reclamation  district. 
No  general  law  providing  a  method  in 
which  those  interested  may  cause  a  cor- 
poration to  be  dissolved  would  meet  the 
case.  It  is  a  public  agency  called  into 
existence  to  construct  a  public  work;  to 
do  something  which  the  general  policy 
of  the  state  required  to  be  done.     The 


state  changes  its  policy,  revokes  the 
agency,  and  thereby  ends  the  corporation, 
which  exists  only  for  that  purpose. 
People  ex  rel.  Van  Loben  Sels  v.  Recla- 
mation Dist.  No.  551,  117  Cal.  114,  48 
Pac.  1016  (1897). 

Formation  of  drainage  or  sanitary 
district  by  special  act  is  not  within  the 
prohibition  of  Constitution  that  cities, 
towns,  and  villages  shall  not  be  incor- 
porated by  special  legislation.  Owners 
of  Lands  v.  People  ex  rel.  Stookey,  113 
111.  296  (1885);  Wilson  v.  Board  of 
Trustees  of  Sanitary  Dist.  of  Chicago, 
133  111.  443,  27  N.  E.  203   (1890). 

As  to  creation  of  drainage  districts 
by  special  laws,  see  note,  III,  to  People 
ex  rel.  Chapman  v.  Sacramento  Drainage 
District,  ante,  p.  115. 

2.    Legislature  Judge  of  Necessity  for. 

The  legislature  is  the  sole  judge  of 
when  a  general  law  will  not  subserve 
the  purpose  as  well  as  a  special  act,  or 
it  has  at  least,  a  sound  discretion  to 
determine  such  a  question.  Davis  v. 
Garnis,  48  Ark.  348,  3  S.  W.  184 
(1887);  Keel  v.  Board  of  Directors  of 
St.  Francis  Levee  Dist.,  59  Ark.  513,  27 
S.  W.  590    (1895). 

The  clause  in  the  Constitution  that 
when  a  general  law  can  be  made  ap- 
plicable, no  special  law  shall  be  enacted, 
is  addressed  to  the  legislature,  and  is 
not  the  subject  of  review  by  the  courts. 
People  v.  Harper,  91  111.  357  (1878); 
Wilson  v.  Board  of  Trustees  of  Sanitary 


464 


"Watek  and  Mineral  Cases.        [United  States 


convenience,  and  general  welfare  by  leveeing,  ditching  the  lands  of  the 
state  *  *  *  for  the  changing  of  natural  water  courses  to  secure  the 
better  drainage  *  *  *  and  providing  for  the  assessment  and  costs 
therefor,"  etc. 

The  statute  provides  that  the  board  of  supervisors  of  the  county  may 
create  a  drainage  district.  The  board  of  supervisors  appoints  three  com- 
missioners to  classify  the  lands  benefited  and  assess  the  benefits,  giving 
the  owners  notice  of  a  time  and  place  for  hearing  said  report,  after 
which  the  levies  are  made  to  defray  the  expenses  of  said  ditch  or  change 
of  the  water  course.  The  lands  are  to  be  classified  by  tracts  of  forty 
acres  or  less,  according  to  the  legal  or  recognized  subdivisions.     From 


Dist.  of  Chicago,  133  111.  443,  27  N.  E. 
203    (1890). 

D.      By    Implication    and    Recognition. 

Held  that  a  reclamation  district  is 
created  by  implication,  although  pro- 
ceedings to  form  it  may  be  defective, 
where  the  legislature  recognized  it  as 
such  in  providing  by  subsequent  statute 
that  all  warrants  drawn  by  it  should 
bear  interest,  and  a  statute  that  all 
assessments  due  it  should  bear  interest. 
People  v.  Reclamation  Dist.  No.  108,  53 
Cal.   346    (1879). 

A  reclamation  district  is  a  public  cor- 
poration for  municipal  purposes,  and 
the  creation  thereof  may  be  shown  by 
acts  recognizing  its  existence.  Swamp- 
land Dist.  No.  150  v.  Silver,  98  Cal.  51, 
32   Pac.   866    (1893). 

A  reclamation  district  is  a  public  cor- 
poration; it  may  be  created  under 
general  laws  or  by  special  act  or 
implication  of  the  legislature,  and  where 
the  district  is  recognized  in  subsequent 
legislation  as  such  a  district  it  is  con- 
clusive proof  that  the  corporation 
existed  at  the  time  of  such  recognition. 
Reclamation  Dist.  No.  124  v.  Gray,  95 
Cal.  601,  30  Pac.   779    (1892). 

If  the  legislature  acting  under  the 
Constitution  should  by  special  law  create 
a  municipal  corporation,  which  for  some 
reason  lacked  validity,  the  legislature 
having  the  power  thus  to  create  the 
corporation  could,  by  ratification  or 
recognition    of    its    corporate    existence, 


erect  it  into  a  valid  municipality,  and 
the  legislature  can,  notwithstanding  the 
irregularity  of  the  creation  of  a  reclama- 
tion district,  give  it  a  legal  existence  by 
positive  acts  of  recognition.  People  ex 
rel.  Silva  v.  Levee  Dist.  No.  6  of  Sutter 
County,  131  Cal.  30,  63  Pac.  676   (1900). 

II.     With   Regard  to  Certain  Constitu- 
tional   Provisions. 
A.    Impairing  Obligations  of  Contract. 

Obligation  of  contract  is  not  impaired 
by  the  state  changing  its  plans  for  the 
reclamation  of  overflowed  lands  and 
creating  new  and  different  agents  and 
mandatories.  People  ex  rel.  Chapman  v. 
Sacramento  Drainage  District,  155  Cal. 
373,  103  Pac.  207,  ante,  p.  107. 

The  creation  of  a  drainage  district 
and  the  assessment  of  lands  therein  does 
not  impair  the  obligation  of  any  contract 
between  the  United  States  and  the  state 
created  by  the  Arkansas  Act.  In  re 
Tuthill,  36  App.  Div.  492,  55  N.  Y.  Supp. 
657    (1899). 

An  act  forming  a  company  to  drain 
certain  lands  situated  in  the  rear  of  the 
City  of  New  Orleans,  and  imposing  a 
tax  equal  to  the  cost  of  drainage,  with 
ten  per  cent,  interest,  upon  the  lands 
drained,  does  not  contravene  section  10 
of  article  1  of  the  Federal  Constitution 
that  no  state  shall  pass  any  law  impair- 
ing the  obligation  of  contracts,  and 
thereby  no  rights  or  obligations  of  the 
owners  and  the  former  proprietors  from 
whom  they  obtained  title  are  impaired. 


1908] 


C.,  B.  &  Q.  K.  Co.  v.  Board  of  Supervisors. 


465 


the  action  of  the  commissioners  and  board  of  supervisors,  an  appeal 
may  be  taken  to  the  state  district  court.  The  drainage  district,  being 
designated  as  No.  i,  was  created  by  the  board  of  supervisors  in  1905, 
and  soon  thereafter  commissioners  were  appointed,  resulting  in  the 
assessment  of  the  Chicago,  Burlington  &  Kansas  City  Company  in  the 
sum  of  $3,000,  and  the  Keokuk  &  Western  Company  in  the  sum  of 
$4,000,  making  the  sum  of  $7,000  against  the  Chicago,  Burlington  & 
Quincy  Railroad  Company,  the  owner.  The  Chicago,  Burlington  & 
Quincy  Railroad  Company  was  only  an  operating  company,  and  has  no 
interest  in  these  cases. 


New  Orleans  Draining  Company  Praying 
for  the  Confirmation  of  Tableau,  11  La. 
Ann.  338   (1856). 

A  drainage  law  which  gives  a  lien 
for  assessment  superior  to  liens  of  exist- 
ing incumbrances,  is  not  unconstitutional 
as  violating  the  obligation  of  contracts 
or  devesting  vested  rights.  Every  prop- 
erty owner  holds  his  property  subject 
to  the  exercise  of  the  taxing  power,  and 
it  is  immaterial  what  may  be  the  nature 
of  his  interest,  whether  the  fee  or  some 
lesser  estate.  Wabash  Eastern  Railroad 
Co.  of  Illinois  v.  Commissioners  of  East 
Lake  Fork  Special  Drainage  Dist.,  134 
111.  384,  25  N.  E.  781    (1890). 

A  constitutional  provision  prohibiting 
the  impairment  of  obligation  of  contract, 
and  requiring  due  process  of  law,  is  not 
violated  by  a  statute  providing  that  an 
assessment  shall  be  a  first  lien  upon  the 
land  and  that  such  lien  takes  precedence 
over   a  mortgage  lien.     Baldwin  v.   Mo- 
loney, 173  Ind.  574,  91  N.  E.  3    (1910). 
B.    Due   Process  of   Law. 
1.    What  Is  Due  Process. 
Proof  of  existence  of   a   district  as   a 
corporation  de  facto  is  not  sufficient  to 
sustain  an  assessment  and  deprive  owners 
of  their  property  where  they  have  been 
given    no    notice    or    opportunity    to    be 
heard.     Reclamation  District  Xo.  537  v. 
Burger,     122    Cal.    444,     55     Pac.      156 
(1898). 

For  the  legislature  to  form  a  corpora- 
tion for  the  purpose  of  draining  certain 
lands   and  provide   for  the   appointment 
W.  &  M.— 30 


of  commissioners  to  enter  into  a  contract 
with  such  corporation,  and  levy  assess- 
ment upon  the  lands  drained  to  pay  the 
contract  price,  amounts  to  the  taking  of 
private  property  without  due  process  of 
law,  and  is  therefore  unconstitutional. 
Coster  v.  The  Tidewater  Company,  18 
X.  J.  Eq.    (3  C.  E.  G.)    54    (1866). 

A  statute  giving  no  appeal  from  a 
decision  of  commissioners  as  to  whether 
or  not  land  is  benefited  is  not  unconsti- 
tutional as  depriving  owners  of  property 
without  due  process  of  law.  Ross  v. 
Supervisors  of  Wright  County,  128  Iowa 
427,  104  X.  W.  506,  ante,  p.  358. 

The  authority  to  compel  local  improve- 
ments at  the  expense  of  those  to  be 
immediately  benefited  is  not  taxation, 
though  referable  to  the  taxing  power; 
nor  does  the  enforcement  of  a  valid  tax, 
by  whatever  method,  constitute  a  taking 
of  property  without  due  process  of  law 
in  the  sense  of  the  Constitution,  nor  a 
taking  of  private  property  for  public 
use.  Hagar  v.  Board  of  Supervisors  of 
Yolo   County,   47   Cal.   222    (1874). 

As  to  requirement  of  notice  before 
taking  of  property  by  due  process  of  law 
and  questions  in  connection  therewith, 
see  note  to  Ross  v.  Board  of  Supervisors 
of  Wright  County,  ante,  p.  358. 

2.  Injunction  Lies  If  Denied. 
A  drainage  district  cannot  take  or 
destroy  private  property  without  due 
process  of  law,  and  if  it  attempt  so  to 
do,  an  injunction  will  lie.  Board  of 
Drainage  Com'rs  of  Petiteanse  Drainage 


466 


Water  and  Mineral  Cases.        [United  States 


In  1907,  additional  assessments  were  made  against  the  railroad  com- 
pany, aggregating  $2,333.33.  The  company  filed  claims  for  damages 
on  account  of  bridging  the  new  channel  in  both  places,  claiming  in  excess 
of  $30,000,  and  was  allowed  about  two  hundred  dollars.  Appeals  to 
the  state  district  court  were  taken,  and  afterwards  the  cases  were  removed 
to  this  court.  So  that  in  this  court  there  are  four  cases,  one  as  to  each 
road  covering  both  assessments  of  alleged  benefits,  and  one  as  to  each 
road  covering  alleged  damages  on  account  of  the  bridging. 

The  legislature  in  1907  (chapter  95,  p.  100,  Acts  32d  Gen.  Assem.) 
amended  the  former  statute  hereinbefore  referred  to.  One  section  pro- 
vides that  the  company  shall  make  said  ditch  or  channel  across  its  right 


Dist.  v.  Iberia  &  Vermilion  R.  Co.,  117 
La.  940,  42  So.  433    (1906). 

C.    Equal  Rights  and  Privileges. 

In  a  provision  for  the  collection  of  an 
assessment  upon  land  of  resident  owners 
by  proceedings  in  court,  and  against 
land  of  nonresident  owners  as  other 
taxes  are  collected,  there  being  no  dis- 
crimination in  amount  of  assessment,  it 
being  according  to  benefits,  there  is  no 
conflict  with  section  2,  article  IV  of  the 
Federal  Constitution,  guarantying  the 
rights  and  privileges  of  citizens  in  the 
several  states.  Cribbs  v.  Benedict,  64 
Ark.  555,  44  S.  W.  707   (1897). 

D.  Guaranty  of  Jury  Trial. 
1.    May  Be  Denied. 

Denial  of  jury  trial  on  the  questions 
whether  a  proposed  drainage  district  is 
a  public  benefit  and  whether  certain 
lands  will  be  benefited  and  are  therefore 
proper  to  be  included  in  the  district,  is 
not  a  violation  of  the  constitutional 
provision  that  the  right  of  trial  by  jury 
shall  remain  inviolate.  Bankhead  v. 
Brown,  25  Iowa  540  (1868);  Sisson  v. 
Board  of  Supervisors  of  Buena  Vista 
County,  128  Iowa  442,  104  N".  W.  454, 
vol.   3,  this  series. 

Jury  trial  may  be  denied  in  drainage 
proceedings  and  the  fact  that  no  jury  is 
allowed  on  the  question  of  what  lands 
are  benefited  does  not  deny  due  process 
of  law.     Ross  v.  Supervisors  of  Wright 


County,  128  Iowa  427,  104  N.  W.  506. 
ante,  p.  358. 

The  power  of  the  legislature  to  provide 
in  special  proceedings,  such  as  proceed- 
ings for  the  formation  of  drainage 
districts,  etc.,  that  the  trial  shall  be  by 
the  court,  and  not  by  jury,  is  fully  es- 
tablished. Lipes  v.  Hand,  104  Ind.  503, 
1  N.  E.  871    (1885). 

When  compensation  or  damage  for 
lands  taken  for  drainage  purposes  has 
been  constitutionally  fixed  and  ascer- 
tained, the  legislature  may  lawfully 
direct  the  mode  and  manner  of  assessing 
or  apportioning  said  damages  upon  the 
persons  or  property  benefited  thereby, 
and  may  designate  or  appoint  the  per- 
sons to  make  such  assessment  or  appor- 
tionment. People  ex  rel.  Cook  v.  Near- 
ing,  27  N.  Y.  306   (1863). 

2.    Contra. 

Unless  a  right  of  appeal  from  a  de- 
cision of  trustees  to  a  tribunal  in  which 
trial  by  jury  may  be  had  is  given,  the 
law  is  void  as  contravening  the  consti- 
tutional provision  that  the  "right  of 
trial  by  jury  shall  remain  inviolate 
*  and  no  person  shall  be  deprived 
of  life,  liberty  or  property  without  due 
process  of  law."  Fleming  v.  Hull,  73 
Iowa  598,  35  N.  W.  573    (1S87). 

E.    Equal  and  Uniform  Taxation. 

A  special  assessment  for  local  improve- 
ment is  not  double  taxation,  for  it  is 
levied   for   the   special   benefit   the   land 


1908]         C,  B.  &  Q.  E.  Co.  v.  Boaed  of  Supeevisoes. 


467 


of  way,  the  expenses  therefor  being  allowed  the  company  as  its  damages, 
but  it  shall  be  allowed  no  damages  on  account  of  bridging.  The  stat- 
utes in  question  are  consistent  with  the  State  Constitution,  as  held  by 
the  state  supreme  court,  and  at  a  time  before  any  rights  or  burdens 
imposed  in  the  present  litigation.  Ross  v.  Board  of  Supervisors,  128 
Iowa  427,  104  N.  W.  503,  1  L.  R.  A.  (N.  S.)  137;  Sisson  v.  Board 
of  Supervisors,  128  Iowa  442,  104  N.  W.  454,  70  L.  R.  A.  440.  There- 
fore this  court  will  not  consider  that  question.  And  that  the  statute 
of  the  Thirty-Second  General  Assembly  is  retroactive  is  not  a  valid  ob- 
jection thereto,  as  recognized  by  all  the  profession,  and  as  the  cases 


receives  from  the  improvement  in  addi- 
tion to  the  general  benefits  for  which 
general  taxes  are  levied.  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, 155  Cal.  373,  103  Pac.  207,  ante,  p. 
107. 

A  constitutional  provision  that  taxa- 
tion shall  be  equal  and  uniform,  and 
which  prescribes  the  mode  of  assessment 
and  persons  by  whom  it  shall  be  made, 
and  that  all  property  shall  be  taxed,  has 
no  application  to  an  assessment  levied 
for  local  improvement.  Hager  v.  Super- 
visors of  Yolo  County,  47  Cal.  222 
(1874);  Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379  (1888). 

A  constitutional  provision  that  the 
legislature  shall  provide  for  a  uniform 
and  equal  rate  of  taxation  and  for  a 
just  valuation  of  all  the  property  of  the 
state,  and  prohibiting  local  laws  author- 
izing taxation,  does  not  prohibit  local 
taxation  for  objects  in  themselves  local. 
Anderson  v.  Kerns  Draining  Co.,  14 
Ind.  202   (1860). 

The  legislature  has  power  to  require, 
if  possible,  the  proprietors  of  marshy 
lands  to  drain  them.  It  has  power  also, 
for  sufficient  causes,  of  which  it  alone 
is  the  judge,  to  cause  the  work  to  be  done 
and  charged  to  the  proprietors  respec- 
tively, and  this  is  not  the  levying  of  a 
tax  in  the  sense  of  that  word  as  used  in 
a  constitutional  provision  requiring  all 
taxation  to  be  equal  and  uniform.  New 
Orleans  Draining  Company  Praying  for 
the  Confirmation  of  Tableau,  11  La.  Ann. 
338   (1856). 


The  law  authorizing  town  trustees  to 
enter  upon  a  system  of  drainage  when 
the  same  is  demanded  by  or  would  be 
conducive  to  the  public  health,  conven- 
ience, and  welfare,  is  not  subject  to 
constitutional  objections  of  eminent 
domain  and  uniform  taxation.  Sessions 
v.   Crunkilton,   20   Ohio  St.   349    (1870). 

A  law  providing  a  tax  upon  property 
within  a  certain  district  for  the  purpose 
or  erecting  and  preserving  levees,  is  not 
contrary  to  the  provision  of  the  Consti- 
tution requiring  that  all  taxation  shall 
be  equal  and  uniform.  That  provision 
applies  to  taxes  levied  by  the  state  and 
by  counties  for  general  purposes,  and 
does  not  prohibit  local  taxes  or  assess- 
ments for  local  improvements.  Daily  v. 
Swope,  47  Miss.  367    (1872). 

As  to  taxation  as  source  of  power  of 
legislature  to  establish  drains,  see  note, 
V,  to  CofFman  v.  St.  Frances  Drainage 
District,  p.  ,  vol.  3.  this  series. 

F.    Taking    Private   Property  for   Pub- 
lic   Use. 

Where  there  is  no  benefit,  hut  a 
damage,  to  the  land  from  the  improve- 
ment, it  is  a  taking  of  private  property 
without  compensation,  and  hence  void. 
Coffman  v.  St.  Frances  Drainage  District, 

58  Ark.  54,  103  S.  W.  179,  p.  ,  vol. 

2,  this  series. 

The  enforcement  of  a  valid  tax  by 
whatever  method,  does  not  constitute  a 
taking  of  private  property  for  public 
use.  Hagar  v.  Board  of  Supervisors  of 
Yolo  County,  47  Cal.  222  (1874). 


468 


Water  and  Mineral  Cases.        [United  States 


cited  in  the  opinion  of  the  Ross  Case  above  referred  to  on  page  432  of 
128  Iowa,  page  503  of  104  N.  W.,  and  page  137  of  1  L.  R.  A.  (N.  S.), 
clearly  demonstrate.  The  regularity  of  the  proceedings  herein  so  closely 
follows  the  statutes  that  any  argument  with  reference  thereto  would  carry 
us  into  many  details  with  but  little  interest,  and  serve  no  purpose. 

The  substantial  questions  in  the  cases  are  two  in  number. 

1.  Is  the  railroad  company  entitled  to  compensation  for  erecting  a 
bridge  where  each  of  its  roads  cross  the  new  ditch  or  channel?  The 
company  claims  that,  when  it  built  its  roads,  it  erected  bridges  for 
each  across  the  Chariton  River,  and  has  maintained  them  ever  since. 
And  now   to  compel   it  to  erect  another  bridge   for  each  road   at  an 


As  to  rule  that  public  benefit  must 
ensue  before  private  property  can  be 
taken  for  drainage  purposes  and  various 
questions  in  relation  thereto,  see  note  to 

Campbell   v.   Youngson,   p.   ,   vol.   2, 

this  series. 

As  to  taking  property  for  drainage  on 
ground  of  general  public  good,  see  note, 
F,  1,  to  Coffman  v.  St.  Frances  Drainage 
District,  p.  ,  vol.  3,  this  series. 

As  to  taking  property  for  drainage 
on  ground  of  adding  to  tillable  area  of 
state  see  note,  F,  2,  to   Coffman  v.   St. 

Frances  Drainage  District,  p.  ,  vol. 

3,  this  series. 

As  to  taking  property  for  drainage 
on  ground  of  economical  management  of 
same,  see  note,  F,   3,  to  Coffman  v.   St. 

Frances  Drainage  District,  p.  ,  vol. 

3,  this  series. 

As  to  taking  property  for  drainage  on 
ground  of  mere  benefit  to  proprietors, 
see  note,  F,  4,  to  Coffman  v.  St.  Frances 

Drainage   District,   p.  ,   vol.   3,   this 

series. 

G.     Provisions    Regarding    Elections. 
1.    General   Laws   Do   Not  Apply. 

An  act  creating  a  drainage  district 
and  providing  for  commissioners  thereof 
is  not  void  as  creating  an  illegal  munici- 
pal corporation  in  which  the  officers  are 
not  elected  by  the  people.  Owners  of 
Lands  v.  People  ex  rel.  Stookey,  113 
111.  296   (1885). 

The  formation  of  a  reclamation  dis- 
trict is  not  unconstitutional  as  requiring 


a  property  qualification  as  a  right  to 
vote.  As  these  districts  are  not  muni- 
cipal corporations,  no  one  is  a  voter  in 
the  sense  of  the  constitutional  provision. 
There  can  be  no  electors  when  there  are 
no  residents  within  the  district,  it  being 
but  part  of  a  scheme  for  conducting  a 
public  work  and  not  a  self-government. 
That  the  owners  elect  trustees  or  a  com- 
mittee of  their  number  to  superintend  the 
work  does  not  constitute  an  exercise  of 
the  elective  franchise,  which  is  the  matter 
to  which  the  constitutional  provision  has 
reference.  The  general  public  has  an 
interest  in  the  reclamation  of  swamp 
and  overflowed  land,  nevertheless  it  is 
one  of  those  public  enterprises  which 
results  in  a  benefit  to  private  lands,  and 
therefore  the  cost  is  made  a  charge  upon 
the  land.  That  those  who  are  specially 
interested  and  who  must  pay  for  the 
improvement  are  heard  upon  the  question 
as  to  whether  it  shall  be  done,  and  are 
permitted  to  appoint  those  who  shall 
superintend  it,  is  not  unusual  nor  does  it 
constitute  an  exercise  of  the  elective 
franchise.  People  ex  rel.  Van  Loben  Sels 
v.  Reclamation  Dist.  No.  551,  117  Cal. 
114,  48  Pac.  1016    (1897). 

A  provision  that  in  an  election  in  a 
drainage  district,  any  person  may  cast 
one  vote  for  each  acre  of  land  or 
fraction  thereof,  and  for  each  platted  lot 
which  he  may  own  or  have  an  easement 
in,  does  not  contravene  the  constitutional 
provision  that  all  elections  shall  be  free 
and   that   there   shall   be   no   hinderance 


1908] 


C,  B.  &  Q.  E.  CO,  V.  BOAED  OF  SUPEKVISOES. 


469 


expense  of  near  $40,000,  without  reimbursing  it,  is  claimed  to  be  taking 
it  without  compensation,  and  therefore  void  as  being  unconstitutional. 
I  have  given  this  question  the  consideration  its  great  importance  demands. 
\s  will  be  noticed,  the  title  of  the  statute,  as  to  the  purpose  thereof  is 
for  the  public  health,  convenience,  and  general  welfare  of  the  public. 
While  it  enhances  the  value  of  property,  the  purposes  are  those  for 
health  and  convenience.  And  it  is  known  by  all  persons  that  a  swampy, 
marshy,  and  overflowed  country  is  not  healthy;  that  at  times  such  a 
country  is  impassable,  and  at  other  times  is  inconvenient  for  the  people 
to  cross  And  such  a  country  drained  eliminates  those  things,  and  is 
conducive  to  the  welfare.    And,  in  bringing  those  desired  situations  about, 


or  impediment  to  the  right  of  a  quali- 
fied voter  to  exercise  the  elective  fran- 
chise, or  that  every  male  person  of  the 
age  of  twenty-one  years  or  upwards 
belonging  to  certain  classes  shall  have 
the  right  to  vote,  as  these  provisions  do 
not  apply  to  elections  in  local  subdi- 
visions such  as  drainage  districts.  State 
ex  rel.  Harris  v.  Hanson,  80  Neb.  274, 
115   N.  W.  294    (1908). 

2.    Property  Qualification. 

The    public    has    an    interest    in    the 
reclamation     of     swamp     lands     which 
results,  however,  in  a  benefit  to  private 
lands,  and  therefore  the  cost  is  made  a 
charge  upon  such  land.     Those  who  are 
specially      interested      and      who      must 
pay  for  the  improvement  are  heard  up- 
on    the     question     as     to     whether     it 
shall   be   done,    and   may    appoint   those 
who   shall   superintend   it.     This   is   not 
strictly  an  exercise  of  the  elective  fran- 
chise, and  no  one  within  such  district  is 
a  voter  in  the  sense  of  the  constitutional 
provision.      There   may   be   no   residents 
of  the  district,  and  therefore  there  can 
be     no     electors.      It     follows     that    the 
law   is   not   void   because    it    requires    a 
property  qualification  for  voters.     People 
ex   rel/ Van  Loben   Se!s   v.   Reclamation 
District  No.   551,   117   Cal.   114,  48  Pac. 
1016    (1897). 

Property  qualification  in  order  to  be 
a  voter  at  elections  in  drainage  districts 
does  not  violate  a  constitutional  inhibi- 
tion against  requiring  property  qualifica- 


tions for  voters.  The  legislature  permits 
the  landowners  to  appoint  their  own 
agents,  and  the  method  which  it  imposes 
in  making  the  selection  is  wholly  within 
its  own  control.  People  ex  rel  Chapman 
v.  Sacramento  Drainage  District,  155  Cal. 
373,  103  Pac.  207,  ante,  p.  107. 

The  constitutional  provision  prohibit- 
ing property  qualification  does  not  pro- 
hibit the  creation  of  drainage  districts 
and  election  of  trustees  by  property 
owners,  as  such  prohibition  extends  only 
to  constitutional  and  statutory  officers. 
State  ex  rel.  Gilson  v.  Monahan,  72  Kan. 
492,  84  Pac.  130,  115  Am.  St.  Pep.  224 
(1905). 

A  statute  requiring  a  petition  by  resi- 
dent owners  is  construed  to  mean  owners 
resident  of  state,  and  not  those  residing 
upon  lands  sought  to  be  embraced  within 
the  district.  Any  other  construction 
would  frequently  defeat  the  object  of  the 
law.  In  re  Drainage  Dist.  No.  1  of 
Harlan  County,  Captain  v.  Dailey,  84 
Neb.  487,  121  N.  W.  462   (1909). 

3.      Cumulative   Voting. 

A  provision  for  cumulative  voting  at 
election  of  trustees  of  sanitary  district 
is  not  void  or  in  derogation  of  the 
constitutional  provision  that  every  male 
citizen  of  the  United  States  over  the  age 
of  twenty-one  years  and  possessing  the 
requisite  qualifications  as  to  residence, 
etc.,  shall  be  entitled  to  vote  at  elections. 
People  ex  rel.  Longenecker  v.  Nelson, 
133  111.  5Go,  27  N.  E.  217   (1890). 


470 


Water  and  Mineral  Cases.        [United  States 


the  expense  is  distributed  against  those  who  will  be  benefited  as  much 
or  more  than  the  burden  assessed  against  them.  So  that,  generally  speak- 
ing, those  who  bear  the  expense  suffer  no  injury,  but  are  largely  bene- 
fited thereby.  But  the  railway  company  contends  that,  after  having 
built  its  bridges  across  Chariton  River,  it  should  not  now  be  required  to 
build  another  bridge  for  each  of  its  roads  without  being  reimbursed. 
Reliance  is  made  upon  the  case  of  Mason  City  &  Ft.  Dodge  Railroad 
v.  Board  of  Supervisors  (by  the  Iowa  Supreme  Court,  June  10,  1908), 
as  reported  in  116  N.  W.  805,  in  which  it  was  held  that  the  railroad 
company  should  be  given  damages  for  the  cost  of  the  additional  bridge 
occasioned  by  the  ditch.  The  following  observations  are  pertinent  to 
that  case,  by  reason  of  which  it  is  not  to  be  followed  by  this  court  in  this 
case.  It  was  not  only  decided  after  the  benefits  were  created  and  the 
burdens  imposed  in  the  cases  at  bar,  but  was  decided  after  the  cases  were 


H.   Creation  of  Corporation  by  Special 
Laws. 

As  to  creation  of  drainage  districts 
by  special  laws  not  being  contrary  to 
constitutional  inhibition  against  creating 
corporations  by  special  laws,  see  note  III, 
to  People  ex  rel.  Chapman  v.  Sacra- 
mento Drainage  District,  ante,  p.  115; 
also  I,  C,  supra,  this  note. 

I.    Loan  of  Credit. 

An  act  providing  for  reclaiming  of 
swamp  and  overflowed  lands,  the  cost 
thereof  to  be  paid  by  assessment  upon 
the  county  at  large  to  the  extent  of  the 
benefit  accruing  to  the  whole  county, 
to  be  determined  by  commissioners,  and 
the  balance  by  assessment  upon  the  land 
benefited,  is  not  contrary  to  the  provi- 
sion of  the  Constitution  prohibiting  a 
county  from  loaning  its  credit.  Shelley 
v.  St.  Charles  County,  17  Fed.  909 
(1883). 

J.    Guarantying  City's   Right  to   Make 
Improvements. 

A  constitutional  provision  that  the 
legislature  may  authorize  corporate 
authorities  of  cities,  towns,  and  villages 
to  make  local  improvements  and  pay  for 
the  same  by  special  assessment  of  the 
property  benefited,  does  not  prohibit  the 
legislature  from  conferring  the  power  to 


make  local  improvements  by  special 
assessments  or  taxation  upon  property 
benefited  upon  other  municipal  corpora- 
tions than  those  designated.  State  ex 
rel.  Abbott  v.  Dodge  County,  8  Neb.  124, 
30  Am.  Rep.  819  (1879);  Darste  v. 
Griffin,  31  Neb.  668,  48  N.  W.  819 
(1891);  Dodge  v.  Aeon,  61  Neb.  376, 
85  N.  W.  292  (1901);  Drainage  Dist. 
No.  1  of  Richardson  County  v.  Richard- 
son County,  86  Neb.  355,  125  N.  W. 
796    (1910). 

The  act  creating  a  corporation  with 
powers  to  drain  certain  lands  in  the  rear 
of  the  City  of  New  Orleans  does  not 
violate  the  provision  of  the  Constitution 
that  citizens  of  the  City  of  New  Orleans 
shall  have  the  right  of  appointing  the 
several  public  officers  necessary  for  the 
administration  of  the  police  of  said 
city,  pursuant  to  the  mode  of  elections 
which  shall  be  prescribed  by  the  legisla- 
ture, as  this  section  was  adopted  for  the 
purpose  of  guarantying  to  the  City 
»f  New  Orleans  a  form  of  city  govern- 
ment and  the  election  of  its  principal 
officers,  and  was  not  intended  to  direct 
the  manner  in  which  contractors  for 
works  of  public  improvement  should  be 
elected,  nor  to  abrogate  contracts  already 
made.  An  incorporated  company  taking 
a  contract  for  the  draining  of  a  swamp 
cannot   be   called   a   public   officer   neces- 


1908]         C,  B.  &  Q.  E.  Co.  v.  Board  of  Supervisors.  471 

submitted  for  decision.  Under  these  circumstances  a  national  court 
will  not  follow  blindly  the  decision  of  the  highest  court  of  the  state  in 
construing  state  statutes  or  a  State  Constitution.  City  of  Ottumwa  v. 
City  Co.,  119  Fed.  315,  56  C.  C.  A.  219,  59  L.  R.  A.  604. 

In  the  case  at  bar,  the  territory  now  drained  and  heretofore  drained 
is  nearly  500,000  acres.  The  water  from  that  territory  all  went  down 
Chariton  River  except  in  high  water,  when  it  went  out  over  the  bottom, 
and  in  time  back  into  and  down  the  river.  In  the  cited  case  by  the  Iowa 
Supreme  Court,  it  inferentially  at  least,  and  I  think  fairly,  appears  that 
additional  drainage  and  surface  waters  were  carried  down  the  valley  as 
compared  with  prior  waters.  But  the  substantial  reason  for  not  following 
that  case  is  the  failure  therein  to  observe  and  give  weight  to  the  two 
or  more  decisions  of  the  Supreme  Court  of  the  United  States,  contented 


sary  for  the  administration  of  the  police 
of  the  city.  New  Orleans  Draining  Com- 
pany Praying  for  the  Confirmation  of 
Tableau,    11    La.   Ann.   338    (1856). 

The  statute  authorizing  assessment  by 
drainage  district  of  benefits  accruing  to 
a  highway  within  the  district  from  the 
drainage  improvement,  is  not  in  conflict 
with  the  constitutional  provisions  exemp- 
ting the  property  of  the  state  and 
county  from  taxation,  nor  that  vesting 
the  corporate  authorities  of  cities,  towns, 
and  villages  with  power  to  make  local 
improvements  by  special  taxation  or 
assessments  against  the  property  bene- 
fited. Drainage  Dist.  No.  1  of  Richard- 
son County  v.  Richardson  County,  86 
Neb.  355,  125  N.  W.  796    (1910). 

K.      State   Engaging    in    Internal    Im- 
provements. 

A  law  providing  for  the  establishment 
of  drains  and  the  payment  therefor  by 
the  townships  and  persons  to  be  benefited 
thereby,  is  a  provision  for  a  work  of 
local  improvement  for  the  benefit  of  the 
public  health,  and  not  repugnant  to  a 
constitutional  provision  prohibiting  the 
state  from  engaging  in  internal  improve- 
ment except  upon  certain  conditions. 
Gillette  v.  McLaughlin,  69  Mich.  547, 
37  N.  W.  551    (1888). 

The  fact  that  a  drain  is  established  by 


using  a  running  stream  and  deepening 
and  widening  it,  does  not  make  it  an 
internal  improvement  within  the  pro- 
hibition of  the  Constitution  that  a  state 
shall  not  engage  in  work  of  internal 
improvement.  Smith  v.  Carlow,  114 
Mich.  67,  72  N.  W.  22  (1897);  Brady 
v.  Hayward,  114  Mich.  326,  72  N.  W. 
233   (1897). 

An  act  providing  for  local  improve- 
ments and  assessment  upon  lands  bene- 
fited does  not  contravene  a  provision  of 
a  constitution  that  no  money  from  the 
treasury  shall  be  appropriated  to  objects 
of  internal  improvement  unless  a  bill  for 
that  purpose  shall  be  approved  by  two- 
thirds  of  both  branches  of  the  legislature, 
as  such  provision  applies  only  to  the 
public  moneys  in  the  public  treasury. 
Alcorn  v.  Hamer,  38  Miss.  652    (1860). 

III.    Power  to   Delegate  Authority. 

A.      May  Act  Direct  or  Delegate. 
1.    General    Rule. 

The  legislature  may  determine  bene- 
fits or  assessments  to  be  placed  upon 
lands  in  districts  which  it  forms  for 
public  improvement,  or  it  may  delegate 
that  duty  to  an  inferior  tribunal,  and 
when  that  duty  is  performed  by  the 
inferior  tribunal  it  is  an  agency  carry- 
ing out  the  legislative  will.  Caton  v. 
Western    Clay   Drainage    Dist.,    87    Ark. 


472 


Water  and  Mineral  Cases.        [United  States 


with  mentioning  and  attempting  to  distinguish  the  one  case  in  the  lower 
court  (212  111.  103,  72  N.  E.  219),  and  failing  to  observe  the  decision 
on  appeal  as  reported  in  Chicago,  B.  &  Q.  R.  Co.  v.  People,  200  U.  S. 
561,  26  Sup.  Ct.  341,  50  L.  Ed.  596. 

That  regard  be  had  to  the  public  welfare,  as  the  "highest  law,"  is  an 
old-time  maxim,  sound  in  principle  and  of  the  greatest  importance  to  all 
persons,  including  owners  of  property.  And  with  like  thought  the 
Supreme  Court  of  the  United  States  decided  the  case  of  Chicago,  Burling- 
ton &  Quincy  Railroad  Co.  v.  People  of  Illinois,  200  U.  S.  561,  26  Sup. 
Ct.  341,  50  L.  Ed.  596.  That  case  is  not  only  a  most  interesting  discus- 
sion of  these  questions,  but,  being  an  authority  binding  on  this  court, 
it  must  be  followed  if  in  point,  and  it  is  to  be  seen  whether  in  point  or 
not.  Rob  Roy  Creek,  in  Illinois,  a  natural  and  living  stream,  was 
bridged  by  the  railroad  company  sufficiently  high  and  wide  to  then,  and 
for  years  thereafter,  carry  the  water  through.    Subsequently  the  drainage 


8,  112  S.  W.  145  (1908).  See  Carson  v. 
St.  Francis  Levee  Dist.,  59  Ark.  513, 
27  S.  W.  590  (1894);  Coffinan  v.  St. 
Francis  Drainage  Dist.,  83  Ark.  54,  103 
S.  W.  179  (1907);  Sudberry  v.  Graves, 
83  Ark.  344,  103  S.  W.  728  (1907); 
Craig  v.  Board  of  Improvement  of  Rus- 
sellville,  Waterworks  Imp.  Dist.,  84 
Ark.  390,  105  S.  W.  867  (1907);  Road 
Improvement  Dist.  v.  Glover,  86  Ark. 
231,  110  S.  W.  1031    (1908). 

The  fact  that  no  appeal  is  provided 
from  a  decision  of  commissioners  as  to 
whether  the  public  health  or  welfare 
will  be  promoted  by  the  intended  work 
does  not  render  the  law  void.  The  legis- 
lature might  have  declared  the  marshes 
a  nuisance,  and  taken  steps  for  draining 
them.  The  question  of  necessity  could 
not  have  been  inquired  into  except  where 
it  was  apparent  that  there  was  an 
attempt  to  evade  the  Constitution  and 
advance  some  private  scheme  under  the 
pretense  of  promoting  the  public  health 
and  welfare.  The  principle  involved  is 
analogous  to  taking  property  by  right 
of  eminent  domain.  The  legislature  may 
determine  the  necessity  of  the  exercise 
of  the  power  and  the  extent  to  which  the 
exercise  sball  be  carried,  or  it  may 
delegate    the    exercise    of    that    right    to 


officers  or  corporations.  State  ex  rel. 
Baltzell  v.  Stewart,  74  Wis.  620,  43  N. 
W.  947,  6  L.  R.  A.  394   (1889). 

2.    Legislature  to   Prescribe  Mode  and 
Agency. 

In  the  absence  of  constitutional  pro- 
hibition, there  is  no  limitation  upon 
the  legislature  as  to  the  mode  of  forming 
drainage  districts  or  the  agencies  to 
be  employed  in  their  creation.  Thus, 
the  legislature  may  give  the  comity  power 
to  form  the  districts  or  vest  the  power 
in  the  highway  commissioners  of  the 
town  or  in  persons  selected  from  two 
boards  of  highway  commissioners  or 
county  commissioners  of  a  county, 
or  corporate  authorities  of  towns, 
cities  or  villages,  or  the  legisla- 
ture may  create  another  corporation 
within  either  and  define  its  powers  and 
determine  the  agencies  through  and  by 
which  its  powers  may  be  exercised.  The 
mode  and  agency  through  and  by  which 
the  special  assessment  is  to  be  imposed 
is  left  wholly  to  legislative  discretion, 
and  when  it  has  chosen  and  designated 
the  agency,  its  selection  is  conclusive. 
People  v.  Drainage  Comm'rs  of  Dist. 
No.  1  of  Young  America,  143  111.  417,  32 
X.  E.  688   (1892). 


1908]         C,  B.  &  Q.  K.  Co.  v.  Board  of  Supeevisoes.  473 

board  adopted  plans  requiring  a  larger  opening.     And  it  was  held: 

«m  The  rights  of  a  railroad  company  to  bridge  over  a  natural 
watercourse  crossing  its  right  of  way,  acquired  under  £  ^neral  «>r- 
porate  power,  are  not  superior  and  paramount  to  the  right  of  the  puonc 
to  use  that  water  course  for  draining  lands.  _ 

"(^  Although  the  opening  may  be  sufficient  at  the  time  tne  onage 
is  built  to  carry*  the  waters,  yet  there  is  an  implied  duty  on  the  part 
of  t he  company  to  maintain  an  opening  adequate  and  effectual  for  such 
nc  s  n  e  volume  of  the  water  as  may  result  from  reasonable  regu- 
StTons  established  from  time  to  time  by  public  authority  for  the  drainage 
of(the  adjacent  ^ry  y  ^  ^  ^  {Q 

,rect3and  maintam  a  new  bridge  of  such  capacity  as  to  carry  the  water 
.  i   >) 

'Thf 'three  propositions  just  enumerated  were  decided  by  that  court 
in  that  case,  and  I  submit  there  are  no  distinctions  of  a  controlling 
character  between  that  case  and  those  now  for  decision.  If,  in  the  case 
now  in  hand,  the  drainage  board  had  planned  the  ditch  to  cross  the  right 


If  the  use  for  which  property  is  taken 
be  to  satisfy  a  great  public  want  or 
public  exigency,  it  is  a  public  use  within 
the  meaning  of  the  Constitution,  and  the 
state  is  not  limited  to  any  given  mode 
of  applying  that  property  to  satisfy  the 
want  or  meet  the  exigency.  Gilmer  v. 
Lime  Point,  18  Cal.  229  (1861)  ;  Turlock 
Irr.  Dist.  v.  Williams,  76  Cal.  3G0,  18 
Pac.   379    (188S). 

3.    May  Require  Judicial  Investigation. 
The  act  providing  for  the  filing  of  a 
petition,  etc.,  in  the   district  court,  and 
that    upon    hearing    the    court    may    by 
order    declare    the    drainage    district    a 
public    corporation,    may    exclude    such 
lands   as   will     not     be     benefited^    and 
declare  the  remainder  a  drainage  district 
as  prayed  for,  does  not  conflict  with  the 
constitutional  provision  dividing  powers 
of    state    into    three    departments.      The 
power  of  the  legislature  over  the  subject 
of  procedure  within  limits  not  impairing 
the  inherent  powers  of  jurisdiction  of  the 
courts  is  not  restricted,  and  it  is  compe- 
tent to  require  by  statute  a  preliminary 
judicial  ascertainment  of  facts  the  exis- 
tence   of    which    is     made     a     condition 
precedent    to    the    creation    of    a    public 
corporation.      Bonds   v.   Minor,    80    Neb. 


180,  114  N.  W.  146  (1907);  Drainage 
Dist.  No.  1  of  Richardson  County  v. 
Richardson  County,  86  Neb.  355,  125  N. 
W.   796    (1910). 

B.      May  Delegate  to  Any  Tribunal  or 
Officer  or  Form  Districts. 

1.  General  Rule. 
The  authority  to  establish  reclamation 
districts  may  be  delegated  or  lodged  in 
any  board  or  tribunal  which  the  legisla- 
ture may  designate.  The  expense  of  such 
works  may  be  charged  against  the  parties 
specifically  benefited  and  be  made  a  lien 
upon  their  property.  All  that  is  required 
in  such  case  is  that  the  charges  shall  be 
apportioned  in  some  just  and  reasonable 
mode  according  to  the  benefits.  Turlock 
Irr.  Dist.  v.  Williams,  76  Cal.  360,  18 
Pac.  379   (1888). 

Drainage  of  swamps,  overflowed  lands, 
etc.,  may  be  done  through  corporations 
or  county,  township,  or  other  boards, 
or  by  creating  districts;  and  the  power 
to  determine  what  shall  be  the  taxing 
district  is  a  legislative  power,  not 
restricted  except  by  constitutional  limi- 
tation. The  benefit  of  the  highway  or 
levee  or  drain  may  be  so  peculiar  that 
justice  would  require  the  cost  to  be 
I  levied  upon  a  part   of   the  township   or 


474 


"Water  and  Mineral  Cases.        [United  States 


of  way  of  the  company  at  the  point  of  the  old  channel,  or  side  by  side 
thereof,  then  the  strongest  glass  would  not  enable  any  one  to  see  a 
difference  between  the  cited  case  and  the  cases  at  bar.  But  it  is  urged 
with  earnestness  that,  because  the  ditch  is  a  mile  or  more  away  from  the 
old  channel,  the  case  is  not  in  point,  and  that  is  a  distinction  I  fail  to 
see.  By  locating  the  ditch  a  mile  distant,  the  company  will  either  have 
two  short  bridges  for  each  road  to  maintain,  or  if  all  the  water  is  turned 
from  the  old  channel  into  the  new  one,  the  company  will  still  have  but 
the  one  bridge  with  an  opening  to  carry  the  water. 

In  Chicago,  Burlington  &  Quincy  Railroad  v.  City  of  Chicago,  166 
U.  S.  226,  17  Sup.  Ct.  581,  41  L.  Ed.  979,  it  was  held  that  the  company 
could  recover  but  nominal  damages  for  the  opening  of  a  new  street 
across  the  right  of  way  of  the  company,  notwithstanding  the  large  ex- 
pense incurred  thereby  to  the  company.  In  the  case  of  Railroad  Co.  v. 
Bristol,  151  U.  S.  556,  14  Sup.  Ct.  437,  38  L.  Ed.  269,  the  supreme  court 
held  that,  although  the  state  consented  when  the  road  was  constructed 


county  or  upon  parts  of  such  subdivisions 
of  the  state.  In  re  Madera  Irr.  Dist., 
92  Cal.  296,  28  Pac.  272,  675,  14  L.  R. 
A.  755,  21  Am.  St.  Rep.  106  (1891); 
State  v.  Freeman,  61  Kan.  90,  58  Pac. 
959,  47  L.  R.  A.  67  (1899);  Wulf  v. 
Kansas  City,  77  Kan.  358,  94  Pac.  207 
(1908). 

The  power  to  determine  by  whom  the 
affairs  of  a  drainage  district  are  to  be 
administered  is  entirely  within  the  power 
of  the  legislature  to  prescribe.  Mayor, 
etc.  of  Town  of  New  Iberia  v.  New 
Iberia  &  Bayou  Carlin  Drainage  Dist., 
106  La.  651,  31  So.  305   (1901). 

The  duty  of  one  owner  of  swamp  lands 
is  the  duty  of  all,  and  in  order  to  effec- 
tually enter  upon  and  carry  out  any 
feasible  system  of  drainage  through  the 
infected  district  all  such  owners  may 
be  properly  grouped  together  to  bear 
the  general  assessments  for  the  entire 
cost  proportionately,  and  assessment  in 
such  case  is  not  taxation.  Donnelly  v. 
Decker,  58  Wis.  461,  17  N.  W.  389,  46 
Am.  Rep.  637   (1883). 

The  fact  that  the  powers  vested  in 
drainage  commissioners  could  well  have 
been  exercised  by  the  county  board  of 
supervisors,  does  not  prohibit  the  legis- 


lature from  providing  for  such  commis- 
sioners. State  ex  rel.  Baltzell  v.  Stewart, 
74  Wis.  620,  43  N.  W.  947,  6  L.  R.  A. 
394    (1889). 

2.    To   Commissioners. 

In  the  absence  of  constitutional  pro- 
visions, the  assessment  for  the  benefit 
of  lands  from  drainage  can  rightfully 
be  made  by  commissioners,  under  author- 
ity of  the  legislature.  The  persons  by 
whom  and  the  mode  of  making  the 
assessment  are  subject  only  to  legislative 
discretion.  People  ex  rel.  Cook  v.  Near- 
ing,  27  N.  Y.  306   (1863). 

Power  to  fix  boundaries  of  a  district 
and  determine  what  lands  are  benefited 
thereby  and  shall  be  included  therein, 
may  be  delegated  to  commissioners.  State 
ex  rel.  Baltzell  v.  Stewart,  74  Wis.  620, 
43  N.  W.  947,  6  L.  R.  A.  394   (1889). 

But  the  legislature  cannot  delegate 
to  commissioners  power  to  divide  the 
state  into  such  drainage  districts  as 
they  may  in  their  discretion  see  fit. 
People  v.  Parks,  58  Cal.  624,  642  (1881). 

3.  To  Corporations. 

Where  the  legislature  has  power  to 
drain  a  swamp  directly  or  by  its  own 


1908]         C,  B.  &  Q.  B.  Co.  v.  Boabd  of  Supervisors.  475 

that  the  grade  crossings  could  be  put  in,  later  the  road  should  be  com- 
pelled at  its  expense  to  take  out  the  grade  crossings  and  put  in  viaducts 
or  subways.  Other  cases  are  cited  in  the  opinion  referred  to,  but  these 
suffice.  Whatever  promotes  the  health,  the  safety,  the  convenience,  and 
the  welfare,  limited  to  certain  lines,  is  an  exercise  of  the  police  power, 
for  which  property  without  compensation  can  be  taken,  and  expense 
and  burdens  can  be  imposed  without  an  allowance  of  the  equivalent  by 
way  of  damages.  Believing  that  the  cases  at  bar  are  in  all  respects  in 
principle  like  the  cases  passed  on  by  the  supreme  court,  the  company 
is  denied  all  damages,  other  than  removing  the  embankment  for  the  ditch. 
And  for  this,  damages  were  allowed  by  the  board  of  supervisors. 

2.  The  other  and  remaining  question  is,  Can  the  drainage  authori- 
ties' assess  the  railroad  company  for  real  or  supposed  benefits  because 
of  the  new  channel,  and,  if  so,  are  the  assessments  in  these  cases  fair 
and  equitable?  And  this  question  is  in  some  respects  quite  different 
from  the  other,  as,  of  course,  if  there  are  no  benefits,  there  can  be  no 


agents,  it  has  the  power  to  do  it  through 
the  intervention  of  a  company  created 
for  that  purpose.  New  Orleans  Draining 
Company  Praying  for  the  Confirmation 
of  Tableau,  11  La.  Ann.  338  (1856). 

4.     To    Districts. 

It  is   competent  for  the  state  to  au- 
thorize   the     creation     of    governmental 
agencies    for    enforcement    of    the    police 
power   and  for  the  legislature  to  clothe 
county  supervisors  or  other  administra- 
tive   officers    or    boards    with    authority 
to    establish    districts    for    reclamation 
of   swamp,   overflowed   or  wet   lands,   or 
lands    so    subject    to    inundation    as    to 
destroy  their  utility   or  to   constitute   a 
menace  to  the  public  health.     The  fact 
that  such  bodies  of  land  may  extend  into 
two   or   more    counties    does    not    render 
the  legislature  powerless  to  include  con- 
tinuous tracts   in  one   district.     It  may 
delegate  power  to  any  board  or  tribunal 
it  sees  fit.     Hager  v.  Reclamation  Dist., 
Ill    U.    S.   701,   4    Sup.    Ct.    663,   28    L. 
Ed.   569    (1884);    Reclamation    Dist.    v. 
Hager,   66   Cal.   54,   4  Pac.   945    (18S4); 
Shaw  v.  State,  97  Ind.  23    (1884);   Up- 
degraff  v.  Palmer,  107  Ind.  181,  6  N.  E. 
353    (1886);   Hudson  v.  Bunch,  116  Ind. 


63,  18  N.  E.  390  (1888)  ;  State  ex  rel. 
Sheffer  v.  Fuller,  83  Neb.  784,  120  N.  W. 
495   (1909). 

The  statute  authorizing  a  board  of 
supervisors  of  a  county  to  create  a  drain- 
age district,  appoint  commissioners, 
and  classify  the  lands  benefited  and 
assess  the  benefits,  giving  the  owners 
notice  of  a  time  and  place  for  hearing 
the  report,  after  which  levies  are  made 
to  pay  expenses,  is  consistent  with  the 
Constitution  of  Iowa.  Ross  v.  Board  of 
Supervisors  of  Wright  County,  128  Iowa 
427,  104  N.  W.  503.  ante.  358;  Sisson 
v.  Board  of  Supervisors  of  Buena  Vista 
County,  128  Iowa  442,  104  N.  W.  454, 
vol.  3,  this  series;  Chicago,  B.  & 
Q.  R.  Co.  v.  Board  of  Supervisors,  prin- 
cipal case. 

The  drainage  and  reclamation  of  large 
tracts  of  swamp  or  overflowed  land  or 
submerged  land  is  a  matter  of  public 
utility  and  concern,  for  which  the  leg- 
islature may  provide  by  the  creation 
of  local  administrative  organizations  or 
political  corporations.  State  ex  rel. 
Harris  v.  Hanson,  80  Neb.  274,  115  N.  W. 
294    (1908). 

A  law  having  for  its  scheme  to  au- 
thorize   the   formation   of    drainage   dis- 


476 


Water  and  Mineral  Cases.      .  [United  States 


assessments.  When  a  tribunal  is  empowered  or  directed  to  pass  upon 
questions  of  fact,  such  findings  are  final  and  conclusive  as  to  the  facts, 
but  not  as  to  matters  of  law.  Therefore  the  findings  of  the  engineer 
and  board  as  to  the  necessities  of  a  new  channel,  to  the  end  that  the 
public  health,  convenience,  and  welfare  would  be  promoted,  and  as  to 
the  location  and  benefits,  and  depth  and  breadth,  of  the  new  channel, 
are  all  findings  of  fact  concerning  which  the  courts  can  make  no  inquiry, 
much  less  review  or  set  aside.  Ryan  v.  Varga,  37  Iowa  78;  Slack  v. 
Blackburn,  64  Iowa  373,  20  N.  W.  478;  Martin  v.  Mott,  12  Wheat.  19, 
6  L.  Ed.  537;  In  re  Commissioners  of  Aspinwall,  21  How.  539,  16  L.  Ed. 
208;  Enterprise  v.  Zumstein,  67  Fed.  1000,  15  C.  C.  A.  153;  cases  cited 
in  People's  Bank  v.  Gilson  (C.  C),  140  Fed.  1. 

Of  course,  if  the  board  exceeds  its  authority,  or  errs  in  matters  of 
law,  the  courts  will  review.  So  that  all  questions  in  the  case  were  before 
the  board  for  decision,  and  its  findings  of  fact  will  not  be  reviewed 
save  only  the  question  of  benefits,  and  if  the  railroad  company  were 
benefited  at  all,  then  the  amount  of  benefits  in  the  first  instance  would 
be  determined  by  the  board,  with  the  right  of  appeal  to  the  courts  only 
as  to  the  amount.    And  that  the  company  would  be  benefited  in  some  sum, 


tricts  by  the  people  of  the  district, 
authorizing  that  it  manage  the  business 
thereof;  permitting  the  organization  of 
the  district  by  a  majority  in  interest  of 
the  resident  owners  of  swamp  and  over- 
flowed lands  signing  articles  of  associa- 
tion and  submitting  them  to  the  circuit 
court  with  a  petition  praying  for  decree 
creating  such  district;  providing  for 
notice  to  all  persons  not  joining  in  such 
petition;  and  for  trial  by  the  court, 
as  to  the  necessity  of  such  district;  for 
fixing  boundaries  of  the  district  includ- 
ing all  land  that  would  be  benefited  by 
such  drainage;  providing  for  the  elec- 
tion by  the  people  of  a  board  of  super- 
visors to  manage  the  business  of  the 
district;  the  procurement  by  condemna- 
tion, if  necessary,  of  the  right  of  way 
for  ditches,  drains,  etc.;  for  levying 
assessment  not  exceeding  fifty  cents  per 
acre  per  year,  for  benefit,  to  pay  ex- 
penses of  survey,  building,  drainage, 
etc.;  the  appointment  by  the  court  of 
drainage  commissioners  whose  duty  it 
shall    be   to    survey,    locate,   mark,    esti- 


mate the  cost  of,  and  contract  for  con- 
struction of  all  such  drains,  etc.,  is  not 
unconstitutional  as  authorizing  the 
formation  of  a  private  corporation  for 
the  purpose  of  improving  private  prop- 
erty or  forcing  private  individual  persons 
to  become  members  of  such  corporation, 
nor  as  assessing  a  tax  against  property 
for  the  improvement  of  all  property  in 
the  district  that  is  benefited  by  drainage, 
nor  as  discriminating  between  resident 
and  nonresident  owners  without  any 
corresponding  benefit,  nor  as  subjecting 
the  land  to  burden  and  taxation  without 
providing  right  of  trial  by  jury.  Mound 
City  L.  &  S.  Co.  v.  Miller,  170  Mo.  240, 
60  L.  R.  A.  190,  94  Am.  St.  Rep.  727, 
70  S.  W.  721    (1902). 

5.     To    Elected    Officers. 

Under  constitutional  provision  empow- 
ering the  legislature  to  "provide  for  the 
organization  of  drainage  districts  ana 
vest  the  corporate  authorities  thereof 
with  power  to  construct  and  maintain 
levees,    drains,    and    ditches,"    etc.,    the 


1908]  C,  B.  &  Q.  B.  Co.  v.  Board  of  (Supervisors. 


477 


cannot  be  doubted  from  the  evidence.  Counsel  for  the  company  at  the 
argument  conceded  some  benefits,  but  vigorously  contended  that  such 
benefits  would  be  fairly  measured  by  a  few  hundred  dollars,  instead  of 
approximately  $10,000,  as  fixed  by  the  county  authorities.  Heretofore 
the  railroad  tracks  have  been  overflowed,  requiring  the  tracks  to  be  re- 
paired, and  traffic  delayed  and  suspended.  So  that  the  question  is,  What 
shall  be  the  assessment?  Because  it  is  obvious  that  the  overflow  will 
be  less  with  the  channel  straightened. 

Practical  men,  as  well  as  men  educated  as  civil  engineers,  have  testified 
in  the  case.  Farmers  residing  in  the  neighborhood  testified  to  what 
has  occurred  with  reference  to  overflows  and  washing  of  the  company's 
embankments  and  tracks.  What  the  benefits  to  the  company  will  be, 
necessarily  is  in  a  measure  the  subject  of  conjecture.  Many  phases  of  the 
work  of  a  civil  engineer  can  be  stated  with  precision,  for  the  reason  that 
mathematics  is  an  exact  science.  Other  phases  must  be  determined  by 
opinion,  and  the  opinion  formed  from  observation  and  experience.  It 
follows  that  the  benefits  to  the  railroad  company  from  its  eight  miles 
approximately  of  railroad  within  the  drainage  district  cannot  be  stated 
with  certainty.    The  character  of  soil  of  the  area  drained,  as  to  what  per 


legislature  has  all  other  powers  necessary 
to  make  the  general  grant  effective  and 
to  accomplish  the  results  intended  as 
incidental  thereto.  As  to  the  mode  in 
which  the  power  is  to  be  exercised,  the 
legislature  is  left  the  sole  judge,  and  the 
creating  of  highway  commissioners  al- 
ready elected  also  drainage  commission- 
ers, is  not  unconstitutional.  Kilgour 
v.  Drainage  Commissioners,  111  111.  342 
(1884). 

6.  To  Electors. 
That  the  legislature  may  delegate  to 
administrative  officers  the  power  to  deter- 
mine whether  the  particular  proposed 
improvement  will  be  conducive  to  public 
health,  convenience  and  welfare,  is  an 
established  rule.  The  same  function 
may  be  delegated  to  the  electors  of  a 
municipality.  There  is  no  reason  why 
the  property  owners  of  a  district  es- 
tablished by  county  board  could  not  be 
competent  to  determine  for  themselves 
whether  or  not  they  shall  incorporate 
and  thereby,  at  their  own  expense,  es- 
tablish a  system  of  drainage  and  dyking 


for  reclamation  of  land,  the  doing  of 
which  will  be  conducive  to  the  public 
welfare.  State  ex  rel.  Harris  v.  Hanson, 
80  Neb.  274,  115  N.  W.  294    (1908). 

7.     To    Police    Juries. 

In  the  absence  of  constitutional  pro- 
hibition, the  power  of  the  legislature  is 
supreme  within  its  sphere,  and  it  may 
delegate  powers  with  regard  to  opening 
drains,  to  police  juries.  Avery  v.  The 
Police  Jury  of  Iberville,  12  La.  Ann. 
554   (1857). 

8.  In  Minor  Municipalities. 
That  the  legislative  power  for  local 
purposes  may  be  delegated  to  minor 
municipalities  is  a  matter  of  universal 
recognition  and  constant  practice.  Ross 
v.  Board  of  Supervisors  of  Wright 
County,  128  Iowa  427,  104  N.  W.  506, 
ante,  p.  358. 

9.    To  Supervisors. 

A  state  has  power  to  delegate  author- 
ity for  the  establishment  of  a  reclama- 
tion   district    to    supervisors    of    county 


478 


Water  and  Mineral  Cases.        [United  States 


cent,  of  the  rainfall  will  go  into  the  ground,  that  depending  on  whether 
the  ground  is  frozen  or  not,  and  depending  still  further  on  the  time  the 
rain  is  falling,  and  what  rains  have  preceded,  and  to  what  extent,  if  any, 
the  ground  is  already  saturated,  the  season  having  much  to  do  with  the 
evaporation,  and  perhaps  other  things,  make  it  impossible  of  precise 
calculation.  Then,  again,  the  worth  of  money  as  to  rates  of  interest 
vary,  as  is  known  by  all.  But  the  assessments  against  the  railroad  com- 
pany are  calculated  with  as  much  definiteness  as  those  against  the  farm 
lands. 

But  taking  all  things  into  account,  it  can  be  stated  in  fairness  that  the 
benefits  to  the  company  as  a  minimum  will  be  $25,000.  This  being  so, 
it  cannot  be  judicially  declared  that  the  assessments  should  be  modified. 
The  result  is  that  in  the  four  cases  judgments  and  decrees  will  be  en- 
tered in  harmony  with  the  motion  of  the  board  of  supervisors. 


or  of  one  county  containing  the  greater 
part  of  the  lands  to  be  reclaimed.  Such 
authority  may  be  lodged  in  any  board 
or  tribunal  which  the  legislature  may 
designate.  Hagar  v.  Reclamation  Dis- 
trict No.  108,  111  U.  S.  701,  4  Sup. 
Ct.    663,   28   L.   Ed.   569    (18S3). 

IV.     Power   to    Dissolve. 

There  is  no  express  limitation  in  the 
Constitution  upon  the  power  of  the  leg- 
islature to  dissolve  a  municipal  corpora- 
tion, if  a  swamp  land  district  is  such. 
A  general  law  providing  a  method  in 
which  those  interested  may  cause  a  cor- 
poration to  be  dissolved  would  not  meet 
the  case.  It  is  a  public  agency  called 
into  existence  to  construct  a  public  work, 
to  do  something  which  the  general  policy 
of  the  state  requires  to  be  done.  The 
state  changes  its  policy,  revokes  the 
agency,  and  thereby  ends  the  corporation, 
which  exists  only  for  that  pur- 
pose.    People   ex   rel.   Van    Loben    Sels 


sells  v.  Reclamation  District  No.  551,  117 
Cal.    114,   48   Pac.    1016    (1897). 

The  legislature,  having  due  regard  to 
vested  rights,  may  put  all  existing  drain- 
age or  reclamation  districts  out  of 
existence  and  create  a  board  to  manage 
all  future  reclamation.  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, 155  Cal.  373,  103  Pac.  207,  ante, 
p.  107. 

The  act  providing  for  the  dissolution 
of  a  drainage  district  is  not  unconstitu- 
tional as  impairing  the  obligation  of  a 
contract,  nor  in  conflict  with  the  con- 
stitutional provision  that  the  general 
assembly  may  pass  laws  permitting  the 
owners  of  lands  to  construct  drains 
across  the  lands  of  others,  etc.,  as  such 
provision  is  not  self-executing,  and  laws 
passed  pursuant  to  it  may  be  modified 
or  repealed  at  any  time,  and  contain  none 
of  the  elements  of  a  contract.  Hollenheck 
v.   Detrick,  162   111.   388,   44  N.  E.   732 

(1896). 


1910] 


.United  States  v.  Lee. 


479 


UNITED  STATES  v.  IEE. 


'[Supreme  Court  of  New  Mexico,  August  2,  1910.] 

15  N.  M.  382,  110  Pac.  607. 

1.  Waters    and    Water   Courses — Conflict    of    Laws — United     States     Stat- 

utes Not   Inconsistent. 
The  Act  of  Congress  of  February  15,  1901,  providing  for  running  telegraph  lines, 
pipe  lines,  etc.,  through  national  parks  and  reservations,  and  the  Act  of  March  3, 
1891,  providing  for  rights  of  way  for  irrigation  ditches,  etc.,  over  public  lands,  ara 
not  inconsistent,  and  the  later  act  does  not  repeal  or  modify  the  earlier. 

2.  Same — Act  of  March  3,  1891,  Grants  an  Easement. 

The  Act  of  Congress  of  March  3,  1891,  providing  for  rights  of  way  for  irriga- 
tion ditches,  canals,  etc.,  over  the  public  lands  of  the  United  States,  grants  an 
easement  which  upon  approval  by  the  secretary  of  the  interior,  becomes  permanent. 

3.  Same — Act   of    February    15,    1901,    Grants   a    Mere    License. 

The  Act  of  Congress  of  February  15,  1901,  providing  for  telegraph  lines,  pipe 
lines,  etc.,  through  national  parks  and  reservations,  grants  merely  a  license,  which 
may  be  revoked  at  any  time. 

4.  Same — Irrigation    Ditches   on    Unsurveyed    Public   Lands. 

Irrigation  ditches,  canals,  etc.,  may  be  constructed  upon  the  unsurveyed  public 
lands,  and  maps  and  plats  thereof  are  not  required  to  be  filed  until  twelve  months 
after   survey. 

5.  Same — Approval    of    Secretary   of   the    Interior. 

It  is  not  necessary  to  secure  the  approval  of  the  secretary  of  the  interior  before 
constructing  irrigation  ditches  or  canals  upon  the  unsurveyed  public  lands  which 
are  not  national  parks  or  reservations,  before  construction  can  be  made. 

6.  Same — Adjudication    of    Rights   of   Settlers  on    Public    Lands. 

The  rights  of  settlers  on  the  public  lands  cannot  be  adjudicated  in  a  suit  by  the 
United  States  to  restrain  the  maintenance  of  irrigation  ditches  on  the  public  lands. 

Suit  by  the  United  States  for  injunction  against  defendants  main- 
taining certain  ditches,  canals,  and  pipe  lines  on  the  public  lands  of  the 


CASE   NOTE. 

Canals  on  Unsurveyed  Government 
Land  and  Government  Reserva- 
tions. 

I.     In  General,  481. 

A.  Federal       Acts       Dis- 

tinguished, 481. 

B.  Disposition   of   Waters 

-  vjt  Affected,  481. 

C.  Restricted    to    Irriga- 

tion, 481. 

D.  Railroad  Grant,  483. 

II.     On  Unsurveyed  Lands.  483. 


III.     On  Government     Reserva- 
tions, 484. 

A.  In  General,  484. 

B.  Indian       Reservations, 

486. 

C.  National  Parks,  488. 

D.  Reservoir  Sites,  489. 

P7.    Maps  and  Approval,  490. 

A.  Time  of  Filing,  490. 

B.  Necessity  of  Approval, 

491. 

C.  Approval  in  Part,  491. 

V.     Effect  of  Grant  of  Land, 
492. 


480  Water  and  Mineral  Cases.         [New  Mexico 

United  States,  in  violation  of  the  laws  of  the  United  States  and  the  rules 
and  regulations  of  the  Department  of  the  Interior.  Decree  for  defend- 
ants.   Writ  of  error  by  plaintiff.     Affirmed. 

For  plaintiff— W.  H.  H.  Llewellyn. 

For  defendants — Hawkins  &  Franklin. 

Plaintiff  in  error,  hereafter  referred  to  as  plaintiff,  filed  its  amended 
complaint  on  the  4th  day  of  June,  1907,  to  which  complaint  a  demurrer 
was  filed  by  one  of  the  defendants  in  error,  Oliver  M.  Lee,  challenging 
the  sufficiency  of  the  amended  complaint.  The  complaint  alleged  sub- 
stantially that  in  the  County  of  Otero,  Territory  of  New  Mexico,  and 
upon  unsurveyed  lands  of  the  United  States  of  America,  the  defendants, 
or  some  of  them,  have  been,  and  are  now,  unlawfully  maintaining  certain 
ditches,  canals,  and  pipe  lines  on  the  said  public  lands  of  the  United 
States  of  America,  which  ditches,  canals,  and  pipe  lines  are  being  main- 
tained in  violation  of  the  laws  of  the  United  States  and  the  rules  and 
regulations  promulgated  by  the  Department  of  the  Interior;  that  the 
defendants,  together  with  their  agents,  servants,  and  workmen,  have 
heretofore  constructed,  and  are  now  unlawfully  maintaining,  irrigating 
ditches,  canals,  and  pipe  lines  upon  the  public  lands  of  the  United  States 
in  the  vicinity  above  described  in  the  complaint,  for  the  purpose  of  con- 
ducting waters  from  Dog  Canon  and  San  Andres  Canon  to  certain  lands 
now  in  the  possession  of  the  defendants ;  that  in  constructing  and  build- 
ing said  ditches,  canals,  and  pipe  lines  the  said  defendants  are  unlawfully 
appropriating  public  lands  of  the  United  States  without  authority  from 
the  said  United  States  or  the  secretary  of  the  interior  to  build  and  con- 
struct any  such  canals,  pipe  lines  or  ditches  through  or  over  the  said 
public  lands ;  that  the  plaintiff  is  informed  that  defendants  gave  out  and 
threaten  to  continue  the  building  and  constructing  of  said  canals  and 
ditches  without  authority  of  law,  and  to  maintain  the  same  and  appro- 
priate the  waters  from  the  said  Dog  Canon  and  said  San  Andres  Canon 
and  conduct  the  said  water  through  said  pipe  lines  and  ditches  over  the 
public  lands  of  the  United  States;  that  upon  parts  of  the  lands  through 
which  said  canals,  ditches,  and  pipe  lines  have  been  so  constructed  bona 
fide  settlers  have  settled  upon  certain  lands  with  the  bona  fide  intention 
of  entering  the  same  at  the  proper  land  office  when  said  lands  shall  have 


I.      In  General.  character  of  the  estate  granted  as  well 

as  the  uses  to  which  the  right  of  way 
may  be  devoted  and  the  extent  thereof, 
that  an  application  cannot  be  properly 
allowed  on  the  acts  taken  together.  The 


A.     FederalActs  Distinguished. 

The   Acts   of   March   3,    1891,    and   of 
May    14,    1896,    differ   so   widely   in   the 


1910] 


United  States  v.  Lee. 


481 


been  surveyed  and  thrown  open  to  entry,  and  the  plaintiff  further  alleges 
that  the  defendants,  their  agents  and  servants,  have  no  authority  in  law 
to  go  upon  the  public  lands  of  the  United  States  and  construct  any  ditches, 
canals,  and  pipe  lines  for  the  purpose  of  conducting  water,  or  for  any 
other  purpose  without  express  authority  of  the  secretary  of  the  interior 
as  provided  by  law  for  the  giving  of  such  authority,  and  the  unlawful  acts 
of  the  said  defendants  in  so  constructing  such  ditches  and  canals  without 
authority  will  cause  great  loss  and  damage  to  the  plaintiff,  and  that 
plaintiff  has  no  adequate  remedy  except  by  injunction,  which  is  prayed 
for,  and  a  temporary  writ  of  injunction  was  allowed. 

In  order  that  the  acts  of  congress  vital  to  a  decision  of  this  case  may 
be  before  the  court,  at  the  outset  sections  18,  19,  20,  and  21  of  the 
Act  of  Congress  of  March  3,  1891  (Act  March  3,  1891,  c.  561,  26  Stat. 
hoi,  1 102  [U.  S.  Comp.  St.  1901,  pp.  1570,  1571]  ;  6  Fed.  St.  Ann., 
pp.  508,  509  and  510),  are  set  out  in  full. 

"Sec.  18.  (Right  of  way  through  public  lands  and  reservations  to 
canal  or  ditch  companies  for  irrigation.)  That  the  right  of  way  through 
the  public  lands  and  reservations  of  the  United  States  is  hereby  granted 
to  any  canal  or  ditch  company  formed  for  the  purpose  of  irrigation 
and  duly  organized  under  the  laws  of  any  state  or  territory,  which  shall 
have  filed,  or  may  hereafter  file,  with  the  secretary  of  the  interior  a 
copy  of  its  articles  of  incorporation,  and  due  proofs  of  its  organiza- 
tion under  the  same,  to  the  extent  of  the  ground  occupied  by  the  water 
of  the  reservoir  and  of  the  canal  and  its  laterals,  and  fifty  feet  on  each 
side  of  the  marginal  limits  thereof,  also  the  right  to  take  from  the 
public  lands  adjacent  to  the  line  of  the  canal  or  ditch,  material,  earth 
and  stone  necessary  for  the  construction  of  such  canal  or  ditch.  Pro- 
vided, that  no  such  right  of  way  shall  be  so  located  as  to  interfere  with 
the  proper  occupation  by  the  government  of  any  such  reservation,  and 
all  maps  of  location  shall  be  subject  to  the  approval  of  the  department 
of  the  government  having  jurisdiction  of  such  reservation,  and  the  priv- 
ilege herein  granted  shall  not  be  construed  to  interfere  with  the  control 
of  water  for  irrigation  and  other  purposes  under  authority  of  the  re- 
spective state  or  territories.     (26  Stat.  L.  1101.) 


permission  must  rest  upon  one  or  the 
other.  In  re  O'Melbeney,  24  Land  Dec. 
560    (1897). 

B.      Disposition  of  Waters   Not 
Affected. 

The    provisions    of    the    Act    of    1891 
deal    only    with  the  right  of  way  over 
W.  &  M—  31 


public  lands  to  be  used  for  purposes  of 
irrigation,  leaving  the  disposition  of  the 
water  to  the  states.  In  re  Sinclair  efc 
al.,  18  Land  Dec.  573    (1894). 

C.      Restricted    to    Irrigation. 

The  Act  of  March  3,  1891,  restricts 
the  purpose  for  which  the  right  of  way 
therein  granted  may  be  used  to  that  at 


482  Water  and  Mineral  Cases.         [New  Mexico 

"Sec.  19.  (Maps  to  be  filed — grants  subject  to  right  of  way — damages 
to  settlers.)  That  any  canal  or  ditch  company  desiring  to  secure  the 
benefits  of  this  act  shall,  within  twelve  months  after  the  location  of  ten 
miles  of  its  canal,  if  the  same  be  upon  surveyed  land,  and  if  upon 
unsurveyed  land,  within  twelve  months  after  the  survey  thereof  by  the 
United  States,  file  with  the  register  of  the  land  office  for  the  district 
where  such  land  is  located,  a  map  of  its  canal  or  ditch  and  reservoir, 
and  upon  approval  thereof  by  the  secretary  of  the  interior  the  same 
shall  be  noted  upon  the  plats  in  said  office,  and  thereafter  all  such  lands 
over  which  such  rights  of  way  shall  pass  shall  be  disposed  of  subject 
to  such  right  of  way.  Whenever  any  person  or  corporation,  in  the  con- 
struction of  any  canal,  ditch  or  reservoir,  injures  or  damages  the  pos- 
session of  any  settler  on  the  public  domain,  the  party  committing  such 
injury  or  damage  shall  be  liable  to  the  party  injured  for  such  injury 
or  damage.     (26  Stat.  L.   1102.) 

"Sec.  20.  (Applicable  to  existing  and  future  canals,  etc. — forfeit- 
ure of  noncompletion.)  That  the  provisions  of  this  act  shall  apply  to 
all  ditches,  canals  or  reservoirs  heretofore  or  hereafter  constructed, 
whether  constructed  by  corporations,  individuals  or  association  of  in- 
dividuals, on  the  filing  of  the  certificates  and  maps  herein  provided  for. 
If  such  ditch,  canal  or  reservoir  has  been  or  shall  be  constructed  by  an 
individual  or  association  of  individuals,  it  shall  be  sufficient  for  such 
individual  or  association  of  individuals  to  file  with  the  secretary  of  the 
interior,  and  with  the  register  of  the  land  office  where  said  land  is  located, 
a  map  of  the  line  of  such  canal,  ditch  or  reservoir,  as  in  case  of  a  corpo- 
ration, with  the  name  of  the  individual  owner  or  owners  thereof,  together 
with  the  articles  of  association  if  there  be  any.  Plats  heretofore  filed 
shall  have  the  benefit  of  this  act  from  the  date  of  their  filing,  as  though 
filed  under  it.  Provided:  That  if  any  section  of  said  canal  or  ditch 
shall  not  be  completed  within  five  years  after  the  location  of  said  section, 

irrigation,  and  maps  of  location  will  not  I   32    Land    Dec.    461      (1904);      Denver, 
be  approved  where  it  appears  that  the      Northwestern  &  Pacific  R.  Co.  v.  Hydro- 


right  of  way  is  desired  for  any  other 
purpose  than  that  of  irrigation.  In  re 
South  Platte  Canal  &  Reservoir  Co.,  20 
Land  Dec.  154  (1895);  20  Land  Dec. 
464  (1895)  ;  In  re  Shaffee  County  Ditch 
&  Canal  Co.,  21  Land  Dec.  63  (1895); 
In  re  Marr,  25  Land  Dec.  344  (1897); 
In  re  Roe,  28  Land  Dec.  573  (1899). 
Under  Act  of  March  3,  1891,  the  right 
of  way  applied  for  must  be  for  the  pur- 
pose of  irrigation.    In  re  Town  of  Delta, 


Electric  Power  Co.,  32  Land  Dec.  452 
(1904);  In  re  Inyo  Consolidated  Water 
Co.,  37  Land  Dec.  78  (1908).  But  ap- 
plication need  not  be  rejected  because 
articles  of  incorporation  of  applicant 
allow  it  to  do  other  things.  In  re  Sierra 
Ditch  &  Water  Co.,  35  Land  Dec.  154 
(1906). 

Company  organized  for  generating 
and  distributing  power  is  not  within  the 
purview   of  the  Act  of  March    3,    1891. 


1910] 


United  States  v.  Lee. 


483 


the  rights  herein  granted  shall  be  forfeited  as  to  any  incompleted  section 
of  said  canal,  ditch  or  reservoir,  to  the  extent  that  the  same  is  not 
completed  at  the  date  of  the  forfeiture.     (26  Stat.  L.  1102.) 

"Sec.  21.  (Rights  granted  only  for  canal  use.)  That  nothing  in  this 
act  shall  authorize  such  canal  or  ditch  company  to  occupy  such  right 
of  way  except  for  the  purpose  of  said  canal  or  ditch,  and  then  only 
so  far  as  may  be  necessary  for  the  construction,  maintenance  and  care 
of  said  canal  or  ditch.     (26  Stat.  L.  1102.) 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  that  the  secretary  of 
the  interior  be  and  hereby  is  authorized  and  empowered  under  general 
regulations  to  be  fixed  by  him,  to  permit  the  use  of  rights  of  way  through 
the  public  lands,  forest,  and  other  reservations  of  the  United  States, 
and  the  Yosemite,  Sequoia  and  General  Grant  National  Parks,  Cali- 
fornia, for  electrical  plants,  poles  and  lines  for  the  generation  and  dis- 
tribution of  electrical  power,  and  for  the  telephone  and  telegraph  pur- 
poses, and  for  canals,  ditches,  pipes  and  pipe  lines,  flumes,  tunnels,  or 
other  water  conduits,  and  for  water  plants,  dams  and  reservoirs  used  to 
promote  irrigation  or  mining  or  quarrying,  or  the  manufacturing  or  cut- 
ting of  timber  or  lumber,  or  the  supplying  of  water  for  domestic,  public, 
or  any  other  beneficial  uses  to  the  extent  of  the  ground  occupied  by  such 
canals,  ditches,  flumes,  tunnels,  reservoirs,  or  other  water  conduits,  or 
water  plants,  or  electrical  or  other  works  permitted  hereunder,  and  not 
to  exceed  fifty  feet  on  each  side  of  the  marginal  limits  thereof,  or  not 
to  exceed  fifty  feet  on  each  side  of  the  center  line  of  such  pipes  and  pipe 
lines,  electrical,  telegraph,  and  telephone  lines  and  poles,  by  any  citizen, 
association  or  corporation  of  the  United  States,  where  it  is  intended  by 
such  to  exercise  the  use  permitted  hereunder  or  any  one  or  more  of  the 
purposes  herein  named:  Provided,  that  such  permits  shall  be  allowed 
within  or  through  any  of  said  parts  or  any  forest,  military,  Indian  or 
other  reservation  only  upon  the  approval  of  the  chief  officer  of  the 


In  re  Kern  River  Co.,  38  Land  Dec.  302 
(1909). 

D.      Railroad  Grants. 

When  a  citizen  settles  upon  a  part  of 
the  unsurveyed  land  of  the  United 
States,  and  has  peaceable  possession 
thereof,  and  constructs  a  ditch  across 
the  same,  he  secures  the  right  of  way 
therefor,  although  such  land  when  sur- 
veyed is  found  to  be  within  a  grant  of 
a  railroad   company.     The  purchaser  of 


land  from  the  railroad  company  does  not 
thereby  secure  title  to  a  ditch  con- 
structed prior  to  the  survey.  Childs  v. 
Sharai,  8  Idaho  378,  69  Pac.  Ill   (1902). 

II.     On   Unsurveyed   Lands. 

Irrigation  ditches,  canals,  etc.,  may 
be  constructed  upon  the  unsurveyed 
public  lands,  and  maps  and  plats  thereof 
need  not  be  filed  until  twelve  months 
after  survey.  United  States  v.  Lee,  prin- 
cipal case. 


484 


Water  and  Mineral  Cases.         [New  Mexico 


department  under  whose  supervision  such  park  or  reservation  falls,  and 
upon  the  finding  by  him  that  the  same  is  not  incompatible  with  the  public 
interests;  Provided  further,  that  all  permits  given  hereunder  for  tele- 
graph and  telephone  purposes  shall  be  subject  to  the  provision  of  title  65 
of  the  Revised  Statutes  of  the  United  States,  and  amendments  thereto, 
regulating  rights  of  way  for  the  telegraph  companies  over  the  public 
domain ;  and  provided  further,  that  any  permission  given  by  the  secretary 
of  the  interior  under  the  provisions  of  this  act  may  be  revoked  by  him 
or  his  successor  in  his  discretion,  and  shall  not  be  held  to  confer  any  right, 
or  easement,  or  interest  in,  to  or  over  any  public  land,  reservation  or 
park."  Act  Feb.  15,  1901,  c.  372,  31  Stat.  790  (U.  S.  Comp.  St.  1901, 
p.  1584). 

The  demurrer  to  the  amended  complaint  was  argued  by  counsel  and 
sustained  by  the  court  in  an  opinion  rendered  June  25,  1907.  The 
demurrer  having  been  sustained  on  the  25th  day  of  June,  1907,  said  cause 
was  dismissed,  and  on  the  19th  day  of  February,  1908,  a  nunc  pro  tunc 
decree  to  that  effect  was  entered  as  of  the  date  June  25,  1907.  The 
cause  is  brought  to  this  court  by  writ  of  error  sued  out  on  behalf  of  the 
plaintiff  in  the  court  below. 

McFIE,  J.  (after  stating  the  facts).  There  is  but  one  question  for 
determination  in  this  case,  and  that  is  whether  or  not  the  defendants 
or  Oliver  M.  Lee,  the  demurrant  herein,  could  acquire  a  right  of  way 
for  a  canal,  ditch,  reservoir,  or  pipe  line  such  as  he  contemplated  con- 
structing, or  had  partially  constructed,  on  and  over  the  unsurveyed 
public  lands  of  the  United  States  without  first  having  obtained  the 
permission  of  the  department  of  the  interior  as  provided  by  the  statute 
in  regard  to  surveyed  public  domain.  In  the  lower  court  this  seems  to 
have  been  conceded  to  be  the  only  question  for  the  court's  determination. 
In  sustaining  the  demurrer,  Justice  Edward  A.  Mann,  presiding  judge 
of  the  Sixth  Judicial  District,  in  which  this  case  arose,  handed  down  a 
carefully  considered  opinion  in  which  all  of  the  statutes  involved  were 


Rights  of  way  for  canals  and  reser- 
voirs under  the  Act  of  1891,  on  unsur- 
veyed public  lands,  cannot  be  approved. 
In  re  Santa  Cruz  Water  Storage  Co.,  13 
Land  Dec.  660  (1891);  Instructions 
from  Secretary  of  Interior,  14  Land 
Dec.  336  (1892)  ;  In  re  Sinclair,  18  Land 
Dec.   573    (1894). 

Map  will  not  be  approved  where  the 
initial  and  terminal  points  are  on  unsur- 
veyed land  and  the  line  for  the  greater 
part  traverses  unsurveyed  lands  and  can- 


not be  used  independently  of  the  other 
portions.  In  re  Arrowhead  Reservoir 
Co.,  16  Land  Dec.  148   (1893). 


III. 


On     Government     Reservations. 
A.      In   General. 


The  right  of  way  is  granted  through 
reservations  by  section  18  of  the  Act  of 
1891,  but  the  proviso  thereof  requires 
all  maps  of  location  to  be  submitted  for 
approval  to  the  department  having  juris- 
diction   over    the     reservation     involved. 


1910] 


United  States  v.  Lee. 


485 


examined  and  applied  to  the  case  at  bar,  and,  inasmuch  as  the  opinion 
rendered  by  the  lower  court  in  our  opinion  states  the  law  of  the  case 
correctly,  such  portions  of  the  opinion  as  are  deemed  necessary  to  a 
determination  of  the  case  in  this  court  will  be  in  whole  or  in  part 
restated  here. 

It  becomes  necessary  for  us  to  refer  to,  and  to  some  extent  consider, 
the  sections  above  quoted  of  the  Act  of  Congress  of  March  3,  1891, 
and  also  make  reference  to  the  Act  of  Congress  of  February  15,  1901, 
inasmuch  as  there  is  some  contention  in  this  case  that  the  latter  act 
materially  modified  or  repealed  those  sections  of  the  former  act,  and 
it  is  necessary  for  the  court  to  ascertain  whether  this  contention  of  the 
plaintiff  in  error  is  correct  or  not.  The  Act  of  March  3,  1891,  is  a  very 
comprehensive  act  and  governed  the  practice  as  to  the  obtaining  of  rights 
of  way  for  canals,  ditches,  and  reservoirs  for  many  years,  and  it  governed 
the  obtaining  of  these  rights  of  way  over  both  surveyed  and  unsurveyed 
lands,  and  clearly  defined  the  mode  of  obtaining  those  rights  of  way, 
depending  upon  whether  the  lands  were  surveyed  or  unsurveyed.  Sec- 
tion 18,  supra,  contains  a  grant  of  right  of  way  through  the  public  lands 
and  reservations  of  the  United  States  to  any  canal  or  ditch  company,  duly 
organized,  which  shall  file  proof  thereof,  as  prescribed,  with  the  secretary 
of  the  interior,  for  ditches,  canals,  or  reservoirs,  including  the  right 
to  take  stone,  earth,  or  other  material  necessary  for  the  construction 
of  such  canal,  ditch,  or  reservoir  from  the  adjacent  lands  for  the  con- 
struction thereof,  and  section  20  makes  these  provisions  applicable  to 
individuals  or  associations.  The  language  of  this  section  is  almost 
identical  so  far  as  the  granting  clause  is  concerned  with  section  1  of  the 
Act  of  March  3,  1875,  granting  rights  of  way  to  railroad  companies  over 
the  public  lands  (Act  March  3,  1875,  c.  152,  18  Stat.  482;  6  Fed.  St. 
Ann.  501  [U.  S.  Comp.  St.  1901,  p.  1568]),  and  this  has  been  held  by 
the  Supreme  Court  of  the  United  States  to  grant  to  a  railroad  company 
which  has  actually  constructed  its  road  an  absolute  right  of  way  over  the 
public  land  superior  to  the  rights  of  any  subsequent  entry  of  the  land, 


In  re  McKnight,  13  Land  Dec.  165 
(1891). 

No  rights  are  acquired  by  the  appli- 
cation prior  to  the  approval  thereof. 
Opinion  of  Secretary  of  Interior,  32 
Land  Dec.  597    (1904). 

The  land  department  cannot  approve 
an  application  under  the  Act  of  March 
3,  1891,  which  materially  conflicts  with 
vested  rights  under  an  application 
theretofore    granted.      Allen    v.    Denver 


Power  &  Irrigation  Co.,  38  Land  Dec. 
207    (1909). 

The  jurisdiction  of  the  land  depart- 
ment is  lost  on  approval  of  application 
under  Act  of  March  3,  1891.  It  can 
only  be  annulled  or  canceled  by  action 
in  the  courts.  Allen  v.  Denver  Power  & 
Irrigation  Co.,  38  Land  Dec.  207  (1900)  ; 
In  re  Sullivan,  38  Land  Dec.  493  (1910). 

Granting  right  of  way  through  forest 
reserve   is   within  the   discretion   of   the 


486 


Water  and  Mineral  Cases.         [New  Mexicc 


although  the  required  profile  maps  had  not  been  filed  as  provided  by 
section  4  of  the  Act.  Jamestown  &  Northern  Ry.  Co.  v.  Jones,  177  U.  S. 
125,  20  Sup.  Ct.  568,  44  L.  Ed.  698;  W.  &  I.  R.  Co.  v.  Coeur  d'Alene 
R.  &  N.  Co.  (C.  C.)  52  Fed.  765.  In  the  case  at  bar  the  lands  are 
unsurveyed  lands,  and  under  the  provisions  of  section  19,  supra,  no  maps 
or  plats  are  required  to  be  filed  until  within  twelve  months  after  the 
lands  have  been  surveyed.  It  is  alleged  in  the  complaint,  however,  that 
the  ditches,  etc.,  of  the  defendants  have  already  been  constructed  and 
are  now  being  maintained,  so  that  the  same  condition  prevails  as  in 
Jamestown  &  Northern  Ry.  Co.  v.  Jones,  supra,  except  that  in  the  case 
here  the  lands  are  unsurveyed.  In  that  case  a  distinction  is  drawn 
between  constructed  roads  and  proposed  roads  desiring  to  acquire  rights 
of  way  prkir  to  construction  on  surveyed  lands,  and  the  actual  construc- 
tion of  the  road  is  held  to  answer  the  purpose  of  filing  the  profile  maps 
by  giving  notice  of  the  tract  claimed  as  such  right  of  way;  but  the 
court  says,  quoting  from  Secretary  Vilas,  in  Dakota  Central  Ry.  Co.  v. 
Downey,  8  Land  Dec.  Dep.  Int.  115,  118:  "As  to  the  roadway,  the 
construction  of  the  road  fixes  the  boundaries  of  the  grant  and  fixes  it 
by  the  exact  rule  of  the  statute.  *  *  *  This  must  undoubtedly  be 
the  rule  when  the  road  is  constructed  over  surveyed  lands,  because  then 
every  condition  necessary  to  the  vigor  of  the  present  grant  is  complied 
with."  The  act  under  consideration  (Act  March  3,  1875)  contained  an 
almost  identical  clause  with  reference  to  the  filing  of  maps  in  case  of 
unsurveyed  lands  within  twelve  months  after  the  survey  thereof  by 
the  United  States.  The  department  of  the  interior,  in  its  regulations 
concerning  rights  of  way  for  canals,  ditches,  and  reservoirs,  issued  Sep- 
tember 28,  1905  (which  it  will  be  observed  is  after  the  passage  of  the 
Act  of  February  15,  1901),  says  at  section  16:  "Maps  showing  canals, 
ditches  and  reservoirs  wholly  upon  unsurveyed  lands,  may  be  received 
and  placed  on  file  in  the  general  land  office  and  the  local  land  office  in  the 
district  in  which  the  same  is  located,  for  general  information,  and  the 
date  of  filing  will  be  noted  thereon;  but  the  same  will  not  be  submitted 
to  nor  approved  by  the  secretary  of  the  interior,  as  the  act  makes  no 
provision  for  the  approval   of  any  but  maps  showing  the   location   in 


land  department.     In  re  Sierra  Ditch  & 
Water  Co.,  38  Land  Dec.  547   (1910). 

B.      Indian    Reservations. 

Right  of  way  may  be  granted  under 
provisions  of  Act  of  March  3,  1891, 
through  Indian  reservations.  Opinion 
to  Director  of  Geological  Survey,  33 
Land  Dec.  563    (1905). 


Under  Act  of  March  3,  1891,  right  of 
way  may  be  granted  through  lands  in 
Indian  reservation  allotted  to  individ- 
ual Indians.  In  re  Fresnol  Water  Right 
Canal,  35  Land  Dec.  550   (1907). 

An  application  will  not  be  approved 
where  it  is  across  lands  formerly  em- 
braced within  an  Indian  reservation  un- 
less such  lands  have  been  surveyed.     A 


1910] 


United  States  v.  Lee. 


487 


connection  with  the  public  surveys.  The  filing  of  such  maps  will  not 
dispense  with  the  filing  of  maps  after  the  surveys  of  the  lands  and 
within  the  time  limited  in  the  act  granting  the  right  of  way,  which  maps, 
if  in  all  respects  regular  when  filed,  will  receive  the  secretary's  ap- 
proval." From  this  provision  of  the  regulations  issued  as  late  as  1905 
or  about  four  years  after  the  Act  of  February  15,  1901,  was  passed,  the 
interior  department  recognizes  that  congress  intended  that  any  person 
may  go  upon  unsurveyed  public  lands  of  the  United  States  lawfully, 
and  construct  irrigating  ditches,  canals,  or  reservoirs  whose  main  pur- 
pose is  that  of  irrigation,  filing  his  map  or  plat  of  the  same  twelve 
months  after  the  survey  of  the  lands  by  the  government  for  the  approval 
of  the  secretary  of  the  interior,  and  that  the  grant  becomes  fixed  so  far 
as  the  right  of  way  is  concerned  upon  the  construction  of  the  ditch  or 
canal,  the  approval  of  the  secretary  afterwards  being  in  the  nature  of  a 
confirmation  of  the  grant  and  a  completion  of  the  title  thereof  upon 
the  records  kept  by  the  government. 

But  it  is  contended  by  the  plaintiff  in  error  that  the  Act  of  February 
15,  1901,  modifies  the  former  act  so  that  no  right  of  way  can  be  acquired 
upon  the  public  lands  of  the  United  States,  surveyed  or  unsurveyed, 
without  first  obtaining  permission  from  the  secretary  of  the  interior. 
The  Act  of  1901,  however,  has  received  no  such  construction  from  the 
department  of  the  interior.  In  fact,  the  honorable  secretary  in  section  47 
of  the  circular  of  regulations,  draws  the  distinction  between  the  two  acts 
in  the  following  apt  language :  "It  is  to  be  especially  noted  that  this  act 
(1901)  does  not  make  a  grant  in  the  nature  of  an  easement,  but  au- 
thorizes a  mere  permission  in  the  nature  of  a  license,  revokable  at  any 
time,  and  it  gives  no  right  whatever  to  take  from  the  public  lands,  reser- 
vations, or  parks  adjacent  to  the  right  of  way  any  material,  earth,  or 
stone  for  construction  or  other  purposes."  Section  46  of  these  regula- 
tions of  the  interior  department  of  1905,  in  construing  the  Act  of 
February  15,  1901,  and  providing  regulations  in  pursuance  of  that  act, 
provides :  "Although  this  act  does  not  expressly  repeal  any  provision  of 
law  relating  to  the  granting  of  permission  to  use  rights  of  way  con- 
tained in  the  act  referred  to,  yet,   considering  the  general   scope  and 


survey  of  the  exterior  lines  of  the  reser- 
vation does  not  remove  the  objection. 
In  re  Coeur  d'Alene  Railway  &  Navi- 
gation Co.,  16  Land  Dec.  66  (1893). 

The  right  of  way  for  a  ditch  that 
traverses  military  and  Indian  reserva- 
tions will  not  be  approved  for  any  part 
thereof  where  by  its  maintenance  the 
supply  of  water  necessary  for  the  proper 


use  of  the  reservation  will  be  impaired. 
In  re  La  Plata  Irrigation  Ditch  Co., 
21  Land  Dec.  355    (1895). 

The  Act  of  March  3,  1891,  does  not 
authorize  the  application  for  a  canal 
across  an  Indian  reservation,  nor  will 
such  right  of  way  below  such  reservation 
be  granted  if  the  canal  is  dependent 
for  its  water  supply  upon  the  right  of 


Watek  and  Mineral  Cases.         [New  Mexico 


purpose  of  the  act,  and  congress  having,  with  the  exception  above  noted, 
embodied  therein  the  main  features  of  the  former  acts  relative  to  the 
granting  of  a  mere  permission  or  license  for  such  use,  it  is  evident  that 
for  purposes  of  administration  the  latter  act  should  control  in  so  far  as 
the  same  pertains  to  the  granting  of  permission  to  use  rights  of  way  for 
the  purposes  therein  specified.  Accordingly,  all  applications  for  per- 
mission to  use  rights  of  way  for  the  purposes  specified  in  this  act  must 
be  submitted  thereunder.  Where,  however,  it  is  sought  to  acquire  a 
right  of  way  for  the  main  purpose  of  irrigation  as  contemplated  by 
sections  18  and  21  of  the  Act  of  March  3,  1891,  and  section  2  of  the 
Act  of  May  11,  1898,  supra,  the  application  must  be  submitted  in  accord- 
ance with  the  regulations  issued  under  said  acts."  It  is  clear  that  the 
honorable  secretary  of  the  interior  did  not  take  the  view  that  the  Act 
of  February  15,  1901,  repealed  or  modified  the  Act  of  March  3,  1891, 
and  section  2,  Act  May  11,  1898,  c.  292,  30  Stat.  404  (U.  S.  Comp.  St. 
1901,  p.  1575),  the  latter  act  being  amendatory  of  the  Act  of  March 
3,  1 89 1,  making  it  plain  that  the  Act  of  March  3,  1891,  still  applied 
to  cases  where  the  main  purpose  of  the  construction  of  ditches  or  canals 
was  for  irrigation  and  not  to  cases  arising  under  the  Act  of  February 
15,  1901,  which  applied  to  parks,  forest,  and  other  reservations  and  for 
the  construction  of  electric  plants,  poles,  and  lines  for  the  genera- 
tion and  distribution  of  electrical  power,  and  for  telephone  and  tele- 
graph purposes,  as  well  as  for  canals,  ditches,  pipes,  and  pipe  lines, 
flumes,  tunnels,  and  other  water  conduits  and  for  water  plants,  dams, 
and  reservoirs  to  promote  irrigation,  for  it  is  very  evident  that  the  main 
purpose  of  the  Act  of  February  15,  1901,  was  not  to  grant  rights  of 
way  for  canals,  ditches,  and  reservoirs  for  irrigation  purposes  mainly, 
but  for  many  other  purposes  as  well.  It  is  quite  significant  that  the 
secretary  in  his  regulations  issued  in  1965,  construing  the  Act  of  1901, 
should  use  the  language  above  quoted,  indicating  that  the  Acts  of  1891 
and  1898  were  still  in  force,  where,  in  the  construction  of  such  canals, 
ditches,  and  reservoirs,  the  main  purpose  of  which  was,  as  in  the  present 
case,  irrigation. 


way  asked  through  the  reservation.  In 
je  Rio  Verde  Canal  Co.,  26  Land  Dec. 
381    (1898). 

The  provisions  of  section  18,  Act 
March  3,  1891,  granting  rights  of  waj/ 
"through  the  public  lands  and  reserva- 
tions of  the  United  States"  for  irrigation 
purposes,  include  Indian  reservations, 
subject  to  the  conditions  that  the  location 
and  construction   of   the   ditch   or   canal 


shall  not  interfere  with  the  proper  oc- 
cupation of  such  reservations  by  the 
government  for  Indian  purposes  and 
uses.  In  re  Rio  Verde  Canal  Co.,  27 
Land  Dec.  421   (1898). 

C.      National  Parks. 

The  Act  of  March  3,  1891,  does  sot 
public  lands  for  irrigation  purposes  is 
applicable  to  tbe  Sequoia  National  Park 


1910] 


United  States  v.  Lee. 


489 


The  term  "public  lands,"  as  used  in  the  Act  of  1901,  seems  to  be 
used  in  a  different  sense  than  the  same  term  is  used  in  the  Act  of 
1891,  in  this,  that  the  act  while  using  the  term  "public  land"  applies 
it  to  lands  subject  to  use  for  parks,  reservations,  and  other  purposes  by 
act  of  the  United  States  necessitating  the  granting  of  a  permit  or  license 
only  for  right  of  way  purposes,  whereas  under  the  former  act  an  ease- 
ment attaches  which  by  the  approval  and  confirmation  of  the  secretary 
of  the  interior  after  survey  may  become  permanent,  as  in  the  case  of  a 
railroad  right  of  way,  provided  that  the  right  of  way  appropriated  upon 
unsurveyed  lands  by  the  construction  of  canals,  ditches,  or  reservoirs 
has  for  its  main  purpose  the  irrigation  of  lands,  as  provided  for  in  the 
Act  of  1891,  as  amended  by  the  Act  of  1898.  Lands  covered  by  parks, 
reservations,  etc.,  are  still  lands  of  the  United  States,  but  are  not  public 
lands  in  the  same  sense  as  when  free  from  the  limitations  of  such  in- 
cumbrances. Thus  it  will  be  seen  that  there  is  no  conflict  between  those 
laws.  Both  of  them  may  stand,  and  being  construed  together,  each  may 
serve  the  purpose  intended  by  congress,  depending  upon  the  conditions 
existing  at  the  time.  It  has  long  been  the  policy  of  the  government  to 
encourage  irrigation  in  the  arid  and  semi  arid  west.  Congress  in  its 
wisdom  has  enacted  such  laws  as  will  enable  rights  of  way  to  be  acquired 
for  such  irrigation  works  over  the  public  lands,  and  thus  encourages 
the  development  of  the  country.  The  tendency  has  been  towards  more 
liberal  laws  in  that  regard,  and  it  is  a  matter  of  common  knowledge 
that  in  this  territory  it  has  been  the  custom  for  years  to  enter  on  the 
unsurveyed  public  lands  of  the  United  States  and  construct  such  ditches, 
canals,  pipe  lines,  and  reservoirs  as  were  necessary  to  put  the  waters 
of  the  streams  to  a  beneficial  use  for  agricultural  and  kindred  purposes. 
Now  it  is  apparent,  as  regards  the  construction  of  ditches  and  canals 
for  irrigation  purposes  upon  unsurveyed  land,  that  if  the  approval  of  the 
secretary  of  the  interior  must  be  had  before  any  such  construction  can  be 
made,  it  would  be  tantamount  to  saying  that  no  such  ditches,  canals, 
or  reservoirs  could  be  constructed  upon  unsurveyed  public  domain,  for 
the  reason  that  section  19  of  the  Act  of  Congress  of  1891  provides  that: 
"Any  canal  or  ditch  company  desiring  to  secure  the  benefits  of  this  act 
shall  within  twelve  months  after  the  location  of  ten  miles  of  its  canal, 


Reservation,  subject  to  the  condition 
that  if  granted,  it  shall  not  interfere 
with  the  proper  occupation  of  the  reser- 
vation by  the  government.  In  re  Gru- 
geninger,  20  Land  Dec.  253   (1895). 

4.      Reservoir  Sites. 
The   provisions   of   the   Act   of   March 


3,  1891,  conferring  privileges  for  irriga- 
tion purposes  over  the  public  domain 
and  reservations  of  the  United  States, 
do  not  contemplate  the  allowance  of 
such  rights  over  the  land  reserved  by 
the  government  for  reservoir  sites.  In 
re  Blue  Water  Land  &  Irrigation  Co., 
23  Land  Dec.  275  (1896). 


490  Water  and  Mineral  Cases.         [New  Mexico 

if  the  same  be  upon  surveyed  land,  and  if  upon  unsurveyed  land  within 
twelve  months  after  the  survey  thereof  by  the  United  States,  file  with 
the  register  of  the  land  office  for  the  district  where  such  land  is  located, 
a  map  of  its  canal,  ditch  or  reservoir,  and  upon  approval  thereof  by 
the  secretary  of  the  interior  the  same  shall  be  noted  upon  the  plats  of  said 
office,"  etc.,  showing  that  corporations,  associations,  or  persons  may  law- 
fully enter  upon  unsurveyed  public  land  and  obtain  a  right  of  way  for 
the  construction  of  ditches,  canals,  etc.,  whose  main  purpose  is  for 
irrigation,  and  maintaining  the  same  until  twelve  months  after  the  survey 
of  the  lands  by  the  United  States,  at  which  time  maps,  plats,  etc.,  must 
be  filed  in  compliance  with  the  act  of  congress.  However,  years  might 
elapse  before  such  surveys  were  made  by  the  United  States.  The  regu- 
lations of  the  secretary  of  the  interior  above  referred  to  provide  for  the 
filing  of  maps,  plats,  etc.,  within  twelve  months  after  the  location  of 
ten  miles  of  a  canal,  provided  the  same  be  upon  surveyed  lands,  but, 
as  to  unsurveyed  lands,  we  find  provisions  indicating  that  the  filing  of 
such  maps,  plats,  etc.,  and  the  approval  of  the  secretary  of  the  interior 
of  such  right  of  way,  is  wholly  unnecessary,  and,  in  fact,  such  approval 
could  not  be  made  by  the  secretary.  "Maps  showing  canals,  ditches, 
or  reservoirs  wholly  upon  unsurveyed  lands,  may  be  received  and  placed 
on  file  in  the  general  land  office  and  the  local  land  office  of  the  district 
in  which  the  same  is  located,  for  general  information ;  and  the  date  of 
filing  will  be  noted  thereon,  but  the  same  will  not  be  submitted  to  nor 
approved  by  the  secretary  of  the  interior,  as  the  act  makes  no  provision 
for  the  approval  of  any  but  maps  showing  the  location  in  connection 
with  the  public  surveys.  The  filing  of  such  maps  will  not  dispense  with 
the  filing  of  the  maps  after  the  survey  of  the  lands  and  within  the 
time  limited  in  the  act  granting  the  right  of  way,  which  maps,  if  in  all 
respects  regular  when  filed,  will  receive  the  secretary's  approval."  In 
the  regulation  just  quoted  the  secretary  of  the  interior  distinctly  states 
that  no  such  approval  or  permission  as  the  law  contemplates  could  be 
granted  for  a  right  of  way  for  irrigation  purposes  while  the  land 
remains  unsurveyed,  and  it  does  not  seem  reasonable  with  the  law  and 
regulations  above  referred  to  providing  for  such  right  of  way  for  irriga- 
tion purposes  that  such  approval  and  permission  should  be  granted  by  the 
secretary  of  the  interior  as  a  condition  precedent  to  the  construction  of 

IV.      Maps  and  Approval. 


A.      Time   of   Filing. 

Irrigation  ditches,  canals,  etc.,  may  be 
constructed  upon  the  unsurveyed  public 
lands  of  the  United  States,  and  maps  and 
plats  thereof  are  not  required  to  be  filed 
until    twelve    months    after    the    survey 


is  made.     United  States  v.  Lee,  principal 
case. 

The  provisions  of  the  Act  of  March 
3,  1891,  requiring  map  of  location  to  be 
filed  within  twelve  months  after  the  lo- 
cation of  the  canal,  ditch  or  reservoir, 
if  upon  surveyed  lands,  and  within 
twelve  months  after  the  survey  if  upon 


1910] 


United  States  v.  Lee. 


491 


irrigation  enterprises  upon  unsurveyed  lands,  when  the  granting  of  such 
approval  was  impossible  under  the  law.  If  such  view  is  to  obtain,  an 
irrigation  system  could  not  be  established,  even  upon  surveyed  lands  in 
the  event  that  the  line  of  ditch  or  canal  traversed  any  portion  of  the 
unsurveyed  public  domain. 

It  would  appear  as  a  serious  step  backwards  to  now  hold  that  such 
irrigation  systems  could  not  be  constructed  and  rights  of  way  acquired 
upon  unsurveyed  land  without  first  seeking  the  consent  of  the  secretary 
of  the  interior,  thus  involving  long  and  tedious  delays,  which  in  such 
case  would  be  absolutely  unavoidable  under  the  law.  This  consent  would, 
of  course,  be  necessary  in  cases  of  parks  and  reservations  where  perma- 
nent rights  cannot  be  acquired,  but  only  a  license  granted  by  the  gov- 
ernment; but  it  was  never  intended  to  apply  to  the  open,  unsurveyed 
public  land  which  will  eventually  be  settled  upon  and  improved. 

The  allegation  of  the  complaint  as  to  the  intervening  rights  of  settlers 
upon  some  of  the  public  lands  over  which  ditches  are  or  may  be  con- 
structed it  is  not  necessary  here  to  consider,  for  the  reason  that  this  action 
is  brought  by  the  United  States  and  not  by  settlers  who  may  or  may  not 
be  injuriously  affected  by  the  construction  of  the  canals  and  ditches  in- 
volved in  this  litigation.  Furthermore,  there  is  a  provision  of  law  for 
the  adjudication  of  the  rights  of  settlers  on  the  public  lands  of  the  United 
States  when  the  same  are  injuriously  affected  by  the  construction  of 
irrigation  systems  (section  19,  Act  Congress,  above  quoted),  and  in  a 
proper  case  damages  may  be  awarded,  but  such  damages  could  not  in 
any  event  be  awarded  in  this  proceeding.  The  sole  question  here  is  the 
right  of  the  government  to  enjoin  the  defendants  from  going  upon 
unsurveyed  public  lands  and  taking  possession  of  them  for  the  purpose 
of  acquiring  a  right  of  way  over  the  unsurveyed  public  lands  of  the 
United  States  for  irrigation  purposes,  without  first  filing  maps  and  obtain- 
ing the  approval  and  permission  of  the  secretary  of  the  interior  so  to  do. 
We  are  of  the  opinion  that  injunction  will  not  lie  against  the  defendants 
under  these  circumstances,  as  the  lands  involved  are  unsurveyed  lands 
of  the  United  States,  as  to  which  the  secretary  of  the  interior  would  be 
required  by  law  to  decline  either  to  grant  such  right  of  way  or  to 
approve  of  the  construction  of  such  ditches,  etc.,  if  such  maps  were  filed 
in  his  office. 


unsurveyed  lands,  is  directory  and  not 
mandatory  with  respect  to  the  time  of 
filing.  In  re  Battlement  Reservoir  Co., 
29  Land  Dec.   112    (1899). 

B.      Necessity  of   Approval. 
The  approval  of  the  secretary  of  the  in- 
terior is  not  a  prerequisite  to  the  con- 


struction of  irrigation  ditches  or  canals 
upon  the  unsurveyed  public  lands  which 
are  not  part  of  a  national  reservation. 
United  States  v.  Lee,  principal  case. 
C.  Approval  in  Part. 
An  application  for  right  of  way  for 
canal    purposes    may    be  approved  in  so 


492 


Water  and  Mineral,  Cases.         [New  Mexico 


There  being  no  error  in  the  rendition  of  the  decree  of  dismissal  in 
the  court  below,  the  decree  is  affirmed  with  costs.    It  is  so  ordered. 

POPE,  C.  J.,  and  PARKER,  J.,  concur.  POPE,  C.  J.,  and  PARKER, 
McFIE,  and  ABBOTT,  JJ.,  are  the  only  members  of  the  court  as  now 
constituted  who  heard  this  case. 

ABBOTT,  J.  (dissenting).  By  the  statute  of  February  15,  1901 
(6  Fed.  St.  Ann.  513),  congress  must,  in  my  opinion,  have  intended  to 
provide  a  complete  system  of  governing  the  acquisition  of  rights  of  way 
over  the  public  domain  for  the  several  purposes  specified  in  the  Act,  and 
to  supersede  the  system  established  by  Act  of  Congress  of  March  3, 
1891  (6  Fed.  St.  Ann.,  pp.  508,  509,  510),  relating  to  irrigation  only, 
under  which  the  defendant  claims.  The  earlier  act  provides :  "That  the 
right  of  way  through  the  public  lands  and  reservations  of  the  United 
States,  is  hereby  granted  to  any  canal  or  ditch  company,  formed  for  the 
purpose  of  irrigation,  and  duly  organized  under  the  laws  of  any  state  or 
territory,  *  *  *  to  the  extent  of  the  ground  occupied  by  the  water 
of  the  reservoir  and  of  the  canal,  and  its  laterals  and  fifty  feet  on  each 
side  of  the  marginal  limits  thereof,  also  the  right  to  take  from  the  public 
lands  adjacent  to  the  line  of  the  canal  or  ditch  material,  earth,  and  stone 
necessary  for  the  construction  of  such  canal  or  ditch."  The  right  thus 
obtained  was  a  permanent  easement,  a  property  right  in  a  strip  of  the 
public  domain,  of  the  width  named  and  of  indefinite  length,  with  the 
right  to  take  materials  outside  of  it,  all  without  obtaining  the  permission 
of  any  officer  of  the  United  States,  or  making  any  payment  to  the 
United  States.  The  later  statute  allows  the  granting  of  revocable 
licenses  only  by  the  secretary  of  the  interior  permitting  the  use  of 
rights  of  way  through  the  public  lands,  forest  and  other  reservations  of 
the  United  States,  and  the  Yosemite,  Sequoia,  and  General  Grant  Na- 
tional Parks,  not  only  for  "canals,  ditches,  pipes  and  pipe  lines,  flumes, 
tunnels  or  other  water  conduits,  and  for  water  plants,  dams,  and  reser- 
voirs, used  to  promote  irrigation,"  but  for  the  various  other  uses  which 
had  come  into  being  or  assumed  prominence  since  the  Statute  of  1891 
was  enacted,  some  of  which  had  been  recognized  by  intervening  enact- 
ments of  congress. 


far  as  it  affects  public  lands,  though  the 
greater  part  of  the  land  it  traverses 
does  not  belong  to  the  public  domain. 
In  re  Kern  Valley  Water  Co.,  15  Land 
Dec.   577    (1892). 

Where    the    right    of    way    sought    is 
over  surveyed  and  unsurveyed   lands   it 


may  be  approved  for  that  portion  upon 
surveyed  lands  if  it  can  be  used  inde- 
pendently of  the  other  portions.  In  re 
Cache  Valley  Canal  Co.,  16  Land  Dec. 
192    (1893). 

V.      Effect  of  Grant  of   Land. 
Permission    to    use    the    public    lands 


1910]  United  States  v.  Lee.  493 

The  consent  of  the  secretary  of  the  interior  is  a  prerequisite  to  the 
acquisition  of  rights  under  it,  and  to  him  is  given  the  power  to  revoke 
such  a  license  in  his  discretion.  That  provision  in  my  opinion  registers 
the  change  which  had  taken  place  in  the  public  attitude  in  the  ten  years 
which  had  elapsed  since  the  enactment  of  the  earlier  statute  on  the 
question  of  conserving  the  natural  resources  of  the  country  for  the 
public,  instead  of  allowing  them  to  be  appropriated  at  will  for  private 
gain.  It  seems  a  thing  incredible  that  congress  so  late  as  1901,  in  making 
a  law  covering  the  subject,  should  have  intended  to  leave  the  public 
lands  of  the  United  States  open  to  the  acquisition  of  permanent  ease- 
ments of  such  extent  and  probable  value  as  those  obtainable  under  the 
earlier  statute,  without  the  payment  of  a  dollar  to  the  United  States, 
and  without  the  consent,  even  against  the  objection  of  its  officers. 

The  canons  of  statutory  construction  do  not  require  us  to  adopt  a 
view  so  contrary  to  the  well-known  policy  of  the  United  States  Govern- 
ment, but  instead,  as  it  seems  to  me,  to  hold  that  the  later  statute,  in  the 
language  of  Judge  Shipman,  in  Kent  v.  United  States,  adopted  by  Mr. 
Chief  Justice  Fuller,  in  United  States  v.  Ranlett  &  Stone,  172  U.  S. 
133,  19  Sup.  Ct.  114,  43  L.  Ed.  393,  "is  complete  revision  of  the  subject 
to  which  the  earlier  statute  related,  and  the  new  legislation  is  mani- 
festly intended  as  a  substitute  for  the  former  legislation,  and  the  prior 
act  must  be  held  to  have  been  repealed."  The  fact  that  between  189 1 
and  1901,  namely,  in  1895  (Act  Jan.  21,  1895,  c.  37,  28  Stat.  635;  6 
Fed.  St.  Ann.  510  [U.  S.  Comp.  St.  1901,  p.  1572]),  1896  (Act  May 
21,  1896,  c.  212,  29  Stat.  127;  6  Fed.  St.  Ann.  510,  511  [U.  S.  Comp. 
St.  1901,  p.  1573]),  and  1898  (Act  May  11,  1898,  c.  292,  30  Stat.  404; 
6  Fed.  St.  Ann.  512  [U.  S.  Comp.  St.  1901,  p.  1575]),  statutes  were 
enacted  partially  covering  some  of  the  subjects  grouped  in  the  Statute 
of  1901,  including  an  amendment  of  the  Statute  of  1891,  under  consider- 
ation, is  to  my  mind  an  additional  reason  for  holding  that  the  Statute 
of  1901  was  meant  to  take  the  place  of  all  those  earlier  statutes.  See 
Sutherland,  Stat.  Con.  (2d  Ed.),  pp.  461,  463,  472,  473;  United  States 
v.  Tynen,  11  Wall.  88,  20  L.  Ed.  153;  United  States  v.  Ranlett,  172 
U.  S.  133-140,  19  Sup.  Ct.  114,  43  L.  Ed.  393;  United  States  v.  Claflin, 
97  U.  S.  546,  24  L.  Ed.  1082;  Com.  v.  Mann,  168  Pa.  290,  31  Atl.  1003; 
Roche  v.  Jersey  City,  40  N.  J.  Law  257;  Ex  parte  Joffee,  46  Mo. 
App.  360-365. 


under  the  Act  of  January  21,  1895,  ter- 
minates with  the  disposal  of  the  land, 
and  any  person  receiving  title  from  the 
United  States  to  lands  so  occupied 
takes  it  free  from  any  charge  thereon 
by  reason  of  the  right  granted  by  that 
act.      Instructions    of    Secretary    of    In- 


terior, 20  Land  Dec.  164   (1895). 

As  to  rights  acquired  by  appropri- 
ator  who  does  not  comply  with  statutes 
providing  for  the  posting  and  recording 
of  notices,  etc.,  see  note  to  Duckworth  v. 
Watsonville  Water  &  Light  Co.,  ante,  p. 
129. 


494  Water  and  Mineral  Cases.  [California 

MORGAN  v.  MYERS. 

[Supreme  Court  of  California,  January  7,  1911;  rehearing  denied  February  16,  1911.] 

—  Cal.  —,113  Pac.  153. 

1.  Assessment  Work,  Claims  in  Common. 

When  several  claims  are  held  in  common,  the  assessment  work  necessary  to  keep 
them  alive  may  be  done  on  one  claim  if  for  the  benefit  and  advantage  of  all. 

2.  Same — Claims   Not  Contiguous. 

The  fact  that  mining  claims  are  not  contiguous  and  that  they  are  separated  by 
a  ravine  goes  to  show  that  assessment  work  done  on  one  is  not  for  the  benefit  of 
the  other. 

3.  Same — Group   of  Claims — Intention. 

Upon  the  question  of  whether  or  not  a  number  of  claims  constitute  a  group,  the 
intention  of  the  owner  was  held  properly  excluded. 

4.  Evidence — Conclusions. 

The  use  of  the  words  "to  my  own  satisfaction"  indicates  a  conclusion  by  the 
witness,  and  his  testimony  is  properly  excluded. 

5.  Same — Objection  without  Stating  Grounds. 

An  objection  on  the  ground  that  the  question  is  "improper  and  ought  to  be  a 
different  one"  held  properly  overruled  as  too  general. 

6.  Same — Admissions  by  Grantor. 

Admissions  by  a  prior  holder  in  possession  are  competent  to  show  the  nature  of 
the  holdings  of  the  grantee. 

Department  2.  Appeal  from  Superior  Court,  Riverside  County;  F.  S. 
Densmore,  Judge. 

Action  to  quiet  title  by  William  Morgan  against  G.  W.  Myers.  Judg- 
ment for  defendant.     Plaintiff  appeals.     Affirmed. 

For  appellant — Palmer  &  Mahan. 

For  respondent — John  G.  North. 

MELVIN,  J.  Action  to  quiet  title  to  certain  mining  claims  in 
Riverside  County.  The  answer  disclaimed  any  interest  of  defendant  in 
certain  of  the  claims,  naming  them,  but  asserted  defendant's  ownership 
of  two  claims,  the  Red  Rose  and  the  Blue  Jacket,  and  averred  that  these 
two  claims  contained  within  their  boundaries  part  of  the  property  within 
the  limits  of  the  Desert  Quail  and  Comstock  claims  to  which  plaintiff 

NOTE.  I    see  note  to  Wright  v.  Killian,  21  Mor. 

Failure  to   perform   assessment  work,  |   Min.  Rep.  211. 


1911]  Morgan  v.  Myers.  495 

asserted  ownership.  There  was  also  a  cross-complaint,  in  which  G.  W. 
Myers'  ownership  and  possession  of  the  Blue  Jacket  and  the  Red  Rose 
claims  were  pleaded.  This  cross-complaint  contained  the  usual  prayer 
that  cross-complainant's  title  to  the  property  in  question  be  quieted.  There 
was  an  answer  to  the  cross-complaint  controverting  the  essential  allega- 
tions therein,  and  upon  the  issues  thus  formed  the  case  was  tried.  The 
court  found  for  the  defendant  and  cross-complainant  upon  all  the  mat- 
ters involved.  This  appeal  is  from  the  order  denying  plaintiff's  motion 
for  a  new  trial. 

Plaintiff's  claim  to  the  property  in  question  is  based  primarily  upon 
locations  made  by  James  B.  and  William  L.  McHaney  and  asserted  title 
thus  acquired  to  certain  claims,  to  wit,  the  Desert  Queen,  the  Comstock, 
Chief  of  the  Hills,  Dry  Lake  Valley,  Juniper,  Desert  Chief,  and  Desert 
Quail.  Respondent  depends  upon  locations  of  the  two  claims  which  he 
made  after  the  Comstock  and  Desert  Quail  had,  according  to  his  conten- 
tion, been  abandoned.  In  other  words,  respondent's  position  is  this :  That 
the  Red  Rose  and  the  Blue  Jacket  claims  only  encroach  upon  the  Corn- 
stock  and  Desert  Quail,  and  that  when  they  do  so,  his  title  to  the  territory 
thus  involved  is  good,  because  of  plaintiff's  previous  abandonment  of 
the  older  claims. 

The  first  contention  of  appellant  is  that  the  evidence  is  insufficient  to 
sustain  the  findings.  In  this  we  cannot  agree  with  him.  There  was  a 
sharp  conflict  in  the  testimony  of  surveyors  and  others  who  testified  on 
behalf  of  the  respective  litigants,  but  it  is  not  our  function  to  reconcile 
this  conflict  if  there  is  any  evidence  to  support  the  findings.  Mr.  Loucks, 
a  surveyor,  testified  to  a  measurement  of  the  various  claims  involved  in 
this  discussion  in  accordance  with  the  monuments  indicted  to  him  by  one 
of  the  McHanev  brothers,  who  were  the  original  locators  of  the  claims 
to  which  plaintiff  asserted  title.  His  map  which  was  received  in  evidence 
thoroughlv  agreed  with  the  defendant's  assertions  with  reference  to  the 
territory  involved,  and  the  defendant  and  other  witnesses  corroborated 
him  in  several  particulars.  Evidently  the  court  accepted  this  testimony 
as  accurate  and  acted  upon  it.  Respondent  also  introduced  evidence 
tending  to  show  that  the  Blue  Jacket  and  Red  Rose  were  located  by 
him  in  1906,  and  that  he  duly  performed  the  necessary  assessment  work 
on  these  claims.  There  was  also  evidence  tending  to  show  that  no  work 
had  been  done  upon  the  Comstock  and  the  Desert  Quail  since  1904. 

The  principal  point  of  controversy  in  the  case  is  this:  Plaintiff  and 
appellant  contends  that  all  of  the  claims  mentioned  in  his  complaint 
are  contiguous ;  that  they  constitute  a  group ;  and  that  consequently  work 
done  upon  one  or  more  of  them  should  be  counted  as  for  the  benefit  of 
all.    In  support  of  this  position  it  was  shown  that  very  extensive  opera- 


496  Water  and  Mineral  Cases.  [California 

tions  had  long  been  in  progress  on  the  Desert  Queen  claim  and  some 
others.  Respondent,  on  the  other  hand,  asserts  that  appellant's  claims 
are  not  contiguous,  and  that  in  any  event  the  work  done  by  appellant  on 
the  Desert  Queen  and  the  Chief  of  the  Hills  was  not  for  the  benefit  of 
the  claims  involved  in  this  controversy.  Section  2324  of  the  Revised 
Statutes  (U.  S.  Comp.  St.  1901,  p.  1426)  contains  the  following  provi- 
sion :  "On  each  claim  located  after  the  tenth  day  of  May,  1872,  and  until 
a  patent  has  been  issued  therefor,  not  less  than  one  hundred  dollars' 
worth  of  labor  shall  be  performed  or  improvements  made  during  each 
year.  *  *  *  But  where  such  claims  are  held  in  common,  such  ex- 
penditure may  be  made  upon  any  one  claim;  and  upon  a  failure  to  com- 
ply with  these  conditions,  the  claim  or  mine  upon  which  such  failure  oc- 
curred shall  be  open  to  relocation  in  the  same  manner  as  if  no  location 
of  the  same  had  ever  been  made,  provided  that  the  original  locators, 
their  heirs,  assigns,  or  legal  representatives,  have  not  resumed  work  upon 
the  claim  after  failure  and  before  such  location,  *  *  *  provided  that 
the  period  within  which  the  work  required  to  be  done  annually  on  all 
unpatented  mineral  claims  shall  commence  on  the  1st  day  of  January 
succeeding  the  date  of  location  of  such  claim." 

The  rule  with  reference  to  the  performance  of  work  under  the  above- 
quoted  section  is  well  stated  in  Chambers  v.  Harrington,  in  U.  S.  350, 
4  Sup.  Ct.  428,  28  L.  Ed.  452 :  "When  several  claims  are  held  in  com- 
mon, it  is  in  the  line  of  this  policy  to  allow  the  necessary  work  to  keep 
them  all  alive  to  be  done  on  one  ^f  them.  But,  obviously,  on  this  one 
the  expenditure  of  money  or  labor  must  equal  in  value  that  which  would 
be  required  on  all  the  claims  if  they  were  separate  or  independent.  It  is 
equally  clear  that  in  such  case  the  claims  must  be  contiguous,  so  that 
each  claim  thus  associated  may  in  some  way  be  benefited  by  the  work 
done  on  one  of  them." 

While  it  may  be  conceded  that  work  done  even  outside  of  contiguous 
claims  may  be  credited  to  all  of  the  properties,  if  for  the  benefit  of  all, 
it  is  necessary  that  that  work  shall  at  least  be  probably  advantageous  to 
all  parts  of  the  group.  Evidently  the  opinion  of  the  court  in  this  case 
was  that  the  work  on  the  Desert  Queen  and  Chief  of  the  Hills  had  no 
relation  to  the  Comstock  and  the  Desert  Quail.  There  was  evidence  of  the 
surveyor  and  others  that  appellant's  claims  were  not  contiguous  in  the 
sense  of  being  attingent.  Joseph  Toutain  testified  to  admissions  on  the 
part  of  the  original  locators  that  there  was  unclaimed  and  unoccupied 
ground  between  the  Comstock  and  the  Desert  Queen.  The  fact  that  they 
were,  according  to  some  of  the  evidence,  separated  by  a  ravine  perhaps 
had  some  effect  in  leading  the  court  to  the  conclusion  that  work  upon  one 
would  not  naturally  benefit  or  have  a  tendency  to  uncover  the  minerals 


1911] 


Morgan  v.  Myers.  497 


in  the  other.     This  deduction  might  also  be  reached  from  other  testi- 
mony regarding  the  topography  of  that  region. 

Appellant  lays  great  stress  upon  a  notice  of  location,  a  purported 
copy  of  which  was  introduced  in  evidence.  It  is  asserted  that  by  this 
notice  one  of  the  original  locators  described  the  Desert  Queen  and  the 
Comstock  as  being  together  and  touching,  but  on  the  witness  stand  the 
writer  of  the  original  notice  said,  "It  did  not  read  that  way."  Whether 
the  notice  was  sufficient  to  overthrow  this  testimony  was  a  matter  not 
for  this  court,  but  for  the  trial  court.  This  disposes  of  the  main  point  in 
the  case.  Our  attention  has  been  called,  however,  to  certain  alleged  er- 
rors of  law  occurring  at  the  trial. 

Appellant  while  on  the  stand  was  asked  to  state  whether  or  not  these 
mines  had  been  held  by  him  as  a  group.     Mr.  North  objected,  upon  the 
ground  that  a  conclusion  of  the  witness  was  called  for,  rather  than  a 
fact,  and  that  the  matter  in  issue  was  what  work  had  been  done  there, 
what  witness'  holding  or  possession  consisted  of,  and  where  the  work 
was  done.     The  court  sustained  this  objection,  and  we  think  this  ruling 
was  correct.    Whether  or  not  the  claims  were  held  as  a  group  was  best 
evidenced,  not  bv  the  intention  of  the  witness,  but  by  the  location  of  the 
properties  and  the  kind,  quality,  and  place  of  the  work  performed.     Mr. 
Halliday,  a  civil  engineer,  who  testified  on  behalf  of  appellant,  was  asked 
the  following  question :    "Is  there  any  other  point,  or  are  there  any  other 
points,  on  the  map  that  you  are  able  to  locate  definitely  from  informa- 
tion that  you  received  or  from  other  points  that  you  have,  and  tell  what 
they  are?"    He  began  his  answer  as  follows:    "From  the  location  notices 
and  notice  on  the  Victoria,  a  description  of  it,  I  was  able  to  locate,  to 
my  own  satisfaction,  both  the  northwesterly  and  southwesterly  corners 
of   the   Victoria   and    from   that   to   determine     *     *     *"— and   at   this 
point  the  objection  was  made  that  the  witness  should  not  state  a  conclu- 
sion from  things  he  found  on  the  ground.  The  court  in  sustaining  his  ob- 
jection said:  "That  would  substitute  his  judgment  for  that  of  the  court. 
In  view  of  the  scope  of  the  question,  we  think  that  the  ruling  was  en- 
tirely correct.     The  use  of  the  words  "to  my  own  satisfaction"  by  the 
witness  indicates  that  he  was  testifying  to  his  conclusion,  rather  than 
to  any  phvsical  facts  involved. 

A.  R.  Fabun,  a  witness  who  testified  on  behalf  of  defendant,  was 
asked  whether  from  an  examination  of  a  map,  introduced  as  one  of  de- 
fendant's exhibits,  he  could  recognize  the  Desert  Queen  mining  claim 
and  the  Comstock  mining  claim.  To  this  the  following  objection  was 
interposed:  "I  object  to  the  question  for  the  reason  that  he  is  asking 
him  whether  he  recognizes  certain  mining  claims,  and  I  presume  that  the 
question  ought  to  be  a  different  one.  I  don't  think  that  is  proper."  The 
W    &  M—  32 


498  Water  and  Mineral  Cases.  [California 

objection  was  overruled,  and  this  was  assigned  as  error  by  appellant. 
While  the  question  was  perhaps  improper,  the  objection  was  not  of  a  kind 
to  call  the  court's  attention  particularly  to  the  vice  of  the  interrogatory. 
In  fact,  there  was  no  ground  stated  in  the  objection.  It  amounted  to 
nothing  more  than  a  suggestion  to  the  court  that  the  question  ought  to  be 
a  different  one.  In  order  to  be  available,  the  objection  should  have  spe- 
cified some  ground  for  the  court's  action,  and,  as  no  such  reason  was 
advanced,  there  was  no  error  in  the  ruling. 

Appellant  excepted  to  the  action  of  the  court  in  permitting  witness 
Fabun  to  testify  that  at  a  time  when  James  B.  McHaney  held  title  to  the 
Comstock  and  the  Desert  Queen  he  admitted  that  there  was  unoccupied 
and  unlocated  ground  between  these  two  claims.  We  think  such  evi- 
dence was  clearly  relevant  under  section  1849,  Code  Civ.  Proc,  which 
is  as  follows:  "Where,  however,  one  derives  title  to  real  property  from 
another,  the  declaration,  act,  or  omission  of  the  latter,  while  holding  the 
title,  in  relation  to  the  property,  is  evidence  against  the  former."  While 
it  is  true  that  the  declaration  of  McHaney  did  not  apply  directly  to  his 
own  property,  it  did  apply  to  the  limitations  of  his  own  claims  and  the 
matter  of  their  contiguity.  In  that  respect  it  was  a  declaration  with  ref- 
erence to  his  properties. 

We  find  no  other  alleged  errors  that  require  special  attention. 

From  the  foregoing  discussion  it  follows  that  no  material  error  ap- 
pears, and  therefore  the  order  from  which  appeal  is  taken  is  sustained. 

We  concur:     HENSHAW,  J.;  LORIGAN,  J. 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  499 


GLADYS  CITY  OH,  GAS  &  MANUFACTURING  CO.  et  al.  v.  RIGHT  OF 

WAY  OIL  CO.  et  al. 

[Court  of  Civil  Appeals  of  Texas,  April  13,  1911;  on  motion  for  rehearing 

May  14,  1911.] 

—  Tex.  — ,  137  S.  W.  171. 

1.  Deeds — Intention  of  Grantor. 

The  construction  of  a  deed  is  governed  by  the  intention  of  the  grantor  as  gathered 
from  the  whole  instrument. 

2.  Same — Knowledge  and  Acquiescence  of  Grantee. 

The  fact  that  a  deed  was  procured  by  the  attorney  for  a  railroad  company  and 
was  delivered  and  remained  in  its  custody,  shows  conclusively  that  the  deed  was 
taken  with  its  knowledge  and  procurement. 

3.  Same — Construction. 

When  a  grantor  first  uses  terms  confined  to  a  particular  class  and  subjoins  a  term 
of  general  import,  this  term  when  thus  used  embraces  only  things  ejusdem  generis. 

4.  Same. 

The  rule  that  the  language  of  a  deed  should  be  construed  against  the  grantor 
should  be  reversed  where  the  deed  is  prepared  by  the  grantee. 

5.  Same. 

The  rule  that  the  language  of  a  deed  should  be  construed  against  the  grantor 
should  not  be   applied     until  all  other  rules  of  construction  fail. 

6.  Railroads — Right  of  Way — Right  to  Take  Oil. 

A  deed  conveying  a  right  of  way  over  a  tract  of  land,  together  with  the  right  to 
take  and  use  all  timber,  earth,  stone  and  mineral  within  the  same,  to  have  and  to 
hold  so  long  as  used  for  a  railway,  does  not  convey  the  right  to  take  oil  and  min- 
erals from  beneath  the  surface. 

7.  Same — Right  of  Way — Right  to  Take  Oil. 

The  owner  of  the  fee  has  no  right  to  enter  upon  the  right  of  way  of  a  railroad 
company  for  the  purpose  of  boring  for  oil. 

8.  Same — Meaning  of  "Right  of  Way." 

The  term  "right  of  way"  ordinarily  means  an  easement;  but  the  use  of  additional 
words  may  widen  it  into  a  fee. 

9.  Same — Right  of  Way — Estoppel. 

Long  continued  acquiescence  in  the  possession  by  a  railway  company  of  a  right 
of  way  200  feet  wide  held  to  estop  the  owner  of  the  fee  from  denying  the  claimed 
width. 

10.  Estoppel — Claim  of  Ownership  of  Oil   Rights. 

Failure  to  enjoin  or  prevent  the  boring  of  a  well  on  its  right  of  way  held  not 
to  show  acquiescence  in  the  claim  of  a  railroad  company  to  the  oil  underneath  its 
right  of  way. 

11.  Appeals  and    Errors — Findings  of   Fact — Request    Necessary. 

Where  the  trial  court  files  conclusions  of  fact,  the  mere  omission  of  further  find- 
ings cannot  be  availed  of  on  appeal  without  a  specific  request  for  such  findings. 

NOTE.  I   note  to  Bellevue  Gas  and  Oil  v.  Pennell, 

Construction  of  oil  and  gas  leases,  see      ante,  p.   396. 


500  Watek  and  Mineral  Cases.  [Texas 

12.  Same — Assignment  of  Error  Uncontroverted. 

Where  an  assignment  of  error  is  uncontroverted  by  the  appellee's  briefs  or  argu- 
ments, the  court  is  authorized  to  accept  the  same  as  true. 

13.  Same — Estoppel  against  Error. 

A  party  cannot  complain  of  the  action  of  the  trial  court  complying  with  his  own 
request. 

14.  Same — Excessive   Damages — Objection  Too   Late. 

Objection  that  the  measure  of  damages  for  the  conversion  of  oil  is  excessive  in 
not  allowing  for  the  cost  of  extraction,  held  to  come  too  late  when  presented  for 
the  first  time  in  a  petition  for  a  rehearing. 

Appeal  from  District  Court,  Jefferson  County :  W.  H.  Pope,  Judge. 

Action  for  possesion  of  an  oil  tract  and  its  products  by  the  Gladys  City 
Oil,  Gas  &  Manufacturing  Company  and  others  against  the  Right  of 
Way  Oil  Company  and  others.  Judgment  for  defendants.  Plaintiffs  ap- 
peal.    Reversed  and  rendered. 

For  appellants— D.  Edward  Greer,  Chenault  O'Brien  and  Geo.  Chilton. 

For  appellees— W.  D.  Gordon,  Oswald  S.  Parker,  Parker,  Orgain  & 
Butler,  and  Baker,  Botts,  Parker  &  Garwood. 

REESE,  J.  This  is  an  appeal  from  a  judgment  of  the  district  court 
of  Jefferson  County,  in  favor  of  defendants,  in  a  suit  by  the  Gladys  City 
Oil,  Gas  &  Manufacturing  Company  and  the  J.  M.  Guffey  Petroleum 
Company  against  the  Right  of  Way  Oil  Company,  the  Texas  &  New 
Orleans  Railway  Company,  the  Gulf  Pipe  Line  Company,  and  Oswald 
Parker,  trustee. 

We  copy  from  appellants'  brief  the  following  statement  of  the  issues 
as  presented  by  the  pleadings  of  the  respective  parties: 

This  is  a  suit  for  the  possession  of  a  tract  of  land,  part  of  the  John  A. 
Veatch  survey  in  Jefferson  County,  Tex.,  and  for  the  title  and  possession 
of  all  oil  produced  therefrom,  and  for  an  injunction  restraining  the  de- 
fendants from  drilling  oil  wells  on  the  land,  and  taking  oil  therefrom, 
and  from  asserting  any  right  or  claim  thereto.  The  plaintiff  alleged: 
That  the  Veatch  survey  was  granted  to  John  A.  Veatch  in  1835.  That 
he  died,  leaving  certain  parties  as  his  heirs  (six  in  number),  and  that  by 
mesne  conveyance  all  of  the  title  to  that  part  of  the  survey  embracing 
the  land  in  controversy  became  vested  in  the  plaintiff  the  Gladys  City  Oil, 
Gas  &  Manufacturing  Company  prior  to  September  18,  1900.  That  on 
that  date  the  said  company  made  a  lease  to  the  assignor  of  plaintiff  the 
J.  M.  Guffey  Petroleum  Company,  giving  it  exclusive  right  to  take  pos- 
session of  the  said  land,  drill  oil  wells  thereon,  and  extract  the  oil  there- 
from, and  that  soon  thereafter  the  said  company  did  take  possession  of 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  501 

the  said  land,  drilled  wells  and  found  oil  in  great  quantities,  and  has  been 
ever  since  in  possession  of  the  said  land,  producing  oil  therefrom.    That 
the  oil  underlying  the  land  is  situated  at  a  depth  of  from  1,000  to  1,500 
feet,    and  the  only  way  the  oil  can  be  reached  and  extracted  is  by  sinking 
wells  to  such  a  depth,  casing  up  the  holes  with  iron  pipe  and  pumping  the 
oil  through  such  wells.    That  the  producing  of  oil  is  a  large  and  separate 
business,  entirely  distinct  from  any  business  in  which  a  railroad  ever 
engages.    That  the  Texas  &  New  Orleans  Railway  Company  has  a  line 
of  track  which  it  operates  running  through  the  leased  premises,  and  is 
the  successor  in  interest  to  the  East  Texas  Railway  and  the  Sabine  & 
East  Texas  Railway  Company,  the  said  railroad  track  having  been  built 
many  years  before  the  plaintiff  acquired  any  interest  in  the  land.     That 
there  was  granted  by  some  of  the  part  owners  to  the  Sabine  &  East 
Texas  Railway  Company  a  right  of  way  over  and  across  the  said  survey 
so  far  as  such  grantors  had  title,  to  wit:    That  S.  H.  Veatch,  one  of  the 
six  heirs  of  John  A.  Veatch,  in  July,  1881,  made  a  deed  purporting  to 
grant  a  right  of  way  across  the  said  tract  of  land  200  feet  in  width,  a 
copy  of  which  instrument  was  attached  to  plaintiff's  petition  as  "Exhibit 
A."    That  in  February,  1891,  Geo.  W.  O'Brien  and  Emma  E.  John  made 
a  right  of  way  deed  to  the  said  railroad  company  over  a  strip  of  100 
feet  in  width,  and  about  the  same  date  W.  C.  Averill  and  P.  S.  Watts 
made  a  similar  deed,  copies  of  both  of  said  instruments  being  attached 
as  exhibits  to  the  petition.     At  the  time  the  last-mentioned  deeds  were 
made,  O'Brien  and  John  owned  a  half  interest  and  Watts  and  Averill 
owned  four-fifths  of  a  half  interest  in  the  survey.     That  by  reason  of 
these  deeds  the  said  railroad  company  has  acquired  an  easement  in  a 
right  of  way  over  the  land,  but  no  other  interest  and  has  no  right  to 
take  any  minerals  except  such  solid  minerals  on  the  surface  as  may  be 
suitable  for  the  construction  and  maintenance  of  the  railroad.     About 
1892  the  Gladys  City  Oil,  Gas  &  Manufacturing  Company  had  this  land 
surveyed  out  and  platted,  laying  the  same  out  in  blocks  approximately 
300  feet  square,  leaving  streets  in  such  parts  of  this  land  as  were  in- 
cluded in  Gladys  City  proper,  and  laying  out  the  balance  of  the  land  in 
farm  lots  of  from  10  to  40  acres  each.     That  prior  to  this  the  railway 
company  had  taken  possession  of  a  strip  200  feet  in  width,  or  100  feet 
distant  from  its  track  where  the  land  in  controversy  is  located,  and  that 
the  said  company,  when  it  made  the  survey,  respected  the  possession  and 
claim  of  the  railway  that  it  had  for  the  purposes  of  a  right  of  way  an 
easement  to  the  strip  lying  southeast  of  the  northwest  corner  of  block 
45  and  made  its  survey  and  plat  accordingly ;  that  is,  it  left  unsurveyed 
and  unplatted  the  200-foot  strip,  and  laid  off  its  blocks  with  the   property 
line    150   feet   from   the   center   of   the    railway,  thus   leaving  a  street 


502  Watek  and  Mineral  Cases.  [Texas 

between  the  strip  claimed  by  the  railway  as  a  right  of  way  and  the  prop- 
erty line,  50  feet  in  width.  That  the  defendant  Right  of  Way  Oil 
Company,  acting  under  a  lease  from  the  Texas  &  New  Orleans  Railway 
Company,  and  having  no  other  title,  just  prior  to  the  filing  of  this  suit, 
had  entered  upon  a  part  of  the  land  embraced  in  the  lease  and  on  the 
right  of  way  of  the  railway  company,  acquired  as  before  stated,  and 
drilled  a  well  thereon  that  produced  a  considerable  quantity  of  petroleum 
oil  which  had  been  delivered  to  the  defendant  Gulf  Pipe  Line  Company, 
and  sold  to  it,  stating  the  amount  of  oil  and  the  amount  of  money.  The 
particular  part  of  the  right  of  way  alleged  to  have  been  trespassed  upon 
was  described  by  field  notes.  The  petition  set  out  the  exact  location  of 
the  wells,  and  showed  that,  if  the  railroad  company  had  a  right  of  wav 
of  200  feet  in  width,  the  well  would  be  on  the  right  of  way;  otherwise 
it  would  be  off  the  same.  The  petition  also  showed  that  before  the  well 
was  drilled  the  plaintiff  Guffey  Petroleum  Company  notified  the  Right 
of  Way  Oil  Company  that,  if  it  drilled  any  well,  it  would  do  so  at  its 
peril ;  that  the  Guffey  Petroleum  Company  claimed  the  land  and  the  ex- 
clusive right  to  produce  oil  therefrom. 

The  prayer  was  for  judgment  establishing  title  in  plaintiffs  to  the  land 
described  as  the  land  trespassed  upon  by  the  defendants,  and  the  exclu- 
sive right  of  the  Guffey  Company  to  drill  on  the  said  land  and  extract  oil 
therefrom;  and  also  establishing  the  title  of  the  plaintiffs  to  the  well 
and  all  oil  produced  therefrom;  also,  an  injunction  on  final  hearing  re- 
straining defendants  from  drilling  any  other  wells  on  the  land  or  setting 
up  any  claim  thereto.  All  of  the  defendants  answered  jointly,  first,  by 
a  general  demurrer;  second,  by  a  plea  of  not  guilty ;  third,  by  plea  of  the 
statute  of  limitation  of  three,  five  and  ten  years ;  and,  fourth,  specifically 
that,  at  the  time  the  deed  was  executed  by  S.  H.  Veatch  in  188 1,  he  was 
claiming  to  own  the  whole  survey  in  common  tenancy  with  the  other 
heirs  of  his  father,  John  A.  Veatch ;  that  his  undivided  interest  amounted 
to  several  hundred  acres ;  that  the  said  survey  was  all  the  same  kind  of 
land  and  all  parts  of  it  were  at  the  time  of  equal  value ;  that  S.  H.  Veatch 
lived  in  Sabine  County,  Tex.,  and  that  all  the  other  heirs  lived  in  Cali- 
fornia, and  at  the  time  he  was  the  general  agent  and  representative  of 
the  other  heirs,  looking  after  their  landed  interests  in  Texas,  and  hold- 
ing power  of  attorney  from  two  of  them ;  that  he  had  acted  as  their  agent 
in  selling  other  lands,  and  they  had  always  ratified  what  he  did;  that 
in  making  the  deed  he  was  acting  for  all  of  the  heirs  and  each  of  them  re- 
ceiving the  benefit  of  building  the  railroad  and  acquiesced  in  and  ratified 
his  act  in  making  the  deed  to  the  railroad  company. 

It  is  further  averred  that  Geo.  W.  O'Brien  was  the  organizer  and  prin- 
cipal owner  of  the  Gladys  City  Oil,  Gas  &  Manufacturing  Company;  that 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  503 

he  was  the  attorney  for  the  Veatch  heirs  in  the  litigation  involving  title 
to  the  said  land;  and  that  the  said  O'Brien  and  others  acquired  all  the 
title  from  the  said  Veatch  heirs,  including  S.  H.  Veatch,  about  1891, 
and  that  this  title  passed  to  the  plaintiffs ;  that  at  the  time  of  the  execu- 
tion of  the  deeds  by  O'Brien  and  Averill  to  the  railroad  company  O'Brien 
was  the  duly  authorized  attorney  representing  the  Sabine  &  East  Texas 
Railway  Company  in  all  of  its  legal  matters  in  this  section  of  Texas,  and 
Averill  was  its  vice  president.  The  Gulf  Pipe  Line  Company  answered 
that  the  Right  of  Way  Oil  Company  had  run  a  stated  quantity  of  oil  into 
its  lines  from  the  land  in  controversy,  and  that  it  had  bought  the  oil, 
paying  the  Right  of  Way  Oil  Company  therefor,  but  had  taken  a  bond 
with  the  Fidelity  &  Deposit  Company  of  Maryland  as  security  to  indem- 
nify it  against  loss  or  damage  in  case  the  Right  of  Way  Oil  Company  had 
no  title.  It  asked  for  judgment  over  against  the  Right  of  Way  Oil 
Company  for  the  amount  of  money  it  had  paid  the  said  company  in 
case  the  plaintiffs  recover  judgment  against  it. 

The  plaintiffs  filed  a  first  supplemental  petition  in  answer  to  the  answer 
of  the  defendants,  containing:  First.  Special  exceptions  to  that  part  of  the 
answer  claiming  an  estoppel.  Second.  Setting  up  that  the  defendants 
were  themselves  estopped  from  claiming  that  the  railway  company  owned 
more  than  100  feet  in  width  across  the  survey  by  reason  of  the  fact  that, 
after  taking  the  deed  from  S.  H.  Veatch  in  1881  for  a  right  of  way  200 
feet  in  width,  the  railroad  company  in  1891  procured  and  accepted 
deeds  from  Watts  and  Averill  and  O'Brien  and  John  for  a  right  of  way 
only  100  feet  in  width;  that  they  were  further  estopped  from  claiming 
that  they  owned  the  entirety  of  the  minerals  under  the  right  of  way  be- 
cause in  the  deeds  taken  in  1891  from  Watts  and  Averill  and  O'Brien 
and  John  no  right  to  use  any  minerals  except  earth  and  stone  was 
granted.  This  we  supplement  as  follows :  Defendants  pleaded,  with  full 
statement  of  the  facts  upon  which  they  based  such  defense,  estoppel  and 
acquiescence  on  the  part  of  plaintiff  in  the  right  and  ownership  of  de- 
fendants in  a  right  of  way  200  feet  wide  across  the  Veatch  survey,  with 
the  right  to  take  the  oil  from  the  land.  They  also  attached  as  an  exhibit 
to  their  answer  a  copy  of  the  deed  from  S.  H.  Veatch  to  the  East  Texas 
Railway  Company,  under  whom  defendants  claim,  and  which  is  hereafter 
fully  set  out.  Plaintiffs  in  their  petition  prayed  the  court  "to  hear  evi- 
dence and  determine  the  extent  of  the  right  of  way  owned  by  the  Texas 
&  New  Orleans  Railway  Company  across  the  Veatch  survey;  that  is,  the 
width  and  extent  thereof,  and  that  as  to  such  right  of  way  the  railway 
company  has  no  right  to  drill  wells  and  take  oil  below  the  surface." 

A  jury  was  waived  and  trial  was  had  before  the  court,  and  resulted 
in  a  judgment  that  the  plaintiffs  take  nothing  by  their  suit  and  that  the 


504  Water  and  Mineral  Cases.  [Texas 

defendants,  including  the  Gulf  Pipe  Line  Company,  "go  hence  without 
day" ;  that  the  pipe  Line  Company  take  nothing  by  its  cross-bill ;  that  the 
defendants  be  quieted  in  their  title  and  right  of  possession  to  a  strip  of 
land  200  feet  in  width  across  the  entire  Veatch  survey,  and  that  the  plain- 
tiffs had  no  title  or  interest  in  any  minerals  underlying  said  land  or  ex- 
tracted therefrom.  From  the  judgment  the  plaintiffs  prosecute  this  ap- 
peal. The  trial  court  prepared  and  filed  conclusions  of  fact  and  law, 
which  are  incorporated  in  the  record. 

We  adopt  the  following  conclusions  of  fact  of  the  trial  court,  which 
are  not  objected  to,  nor  attacked  by  appellant,  or  the  objections  to  which 
we  do  not  consider  well  taken : 

"(i)  All  parties  to  this  suit  claim  title  through  and  under  the  heirs 
of  John  A.  Veatch,  the  original  grantee. 

"(2)  On  the  29th  day  of  July,  1881,  S.  H.  Veatch,  one  of  the  six  heirs 
of  the  original  grantee,  owning  an  undivided  one-sixth  interest  in  over 
3,000  acfes  of  the  Veatch  survey,  made  the  deed  set  out  in  full  in  the 
plaintiffs'  petition  as  an  exhibit,  and  which  is  here  copied  in  full :  'State 
of  Texas,  Sabine  County,  Know  all  men  by  these  presents,  that  T, 
being  the  owner  in  fee  of  the  following  described  tract  of  land  lying  in 
Jefferson  County,  Texas,  to  wit,  an  equal  undivided  one-third  of  a  tract 
of  land  containing  19,481,003  square  varas,  originally  granted  and  titled 
by  the  government  of  Mexico  to  John  A.  Veatch,  as  a  colonist  of  Zavalla's 
colony,  near  a  place  called  Sour  Springs  in  said  county,  and  lying  between 
the  J.  W.  Bullock  and  Pelham  Humpries  leagues  surveys,  except  177 
acres  in  the  N.  W.  corner  of  said  Veatch  survey,  heretofore  conveyed  by 
my  father,  John  A.  Veatch,  for  the  consideration  of  one  dollar  to  me  in 
hand  paid  and  the  further  consideration  of  the  benefits  and  advantages 
that  will  accrue  to  me  by  the  construction  of  a  railway  over  said  tract 
of  land,  have  and  do  hereby  sell,  grant  and  convey  unto  the  East  Texas 
Railway  Company,  for  the  purpose  of  constructing,  operating  and  main- 
taining its  railroad,  the  right  of  way  200  feet  in  width  over  and  upon  the 
above  described  tract  of  land,  together  with  the  right  to  take  and  use  all 
the  timber,  earth,  stone  and  mineral  existing  or  that  may  be  found  within 
the  right  of  way  hereby  granted,  to  have  and  to  hold  to  said  East  Texas 
Railway  Company  and  its  successors,  so  long  as  the  same  or  any  part 
thereof  may  be  occupied  and  used  for  the  purpose  of  constructing,  operat- 
ing or  maintaining  its  said  railway.  In  witness  whereof  I  hereby  sign  my 
name  the  29th  day  of  July,  1881.'  This  deed  was  duly  acknowledged  and 
recorded  in  Jefferson  County  August  19,  1881.  The  grantee  in  that 
deed,  the  East  Texas  Railway  Company,  was  succeeded  in  due  form  by 
the  present  defendant  Texas  &  New  Orleans  Railroad  Company,  and  the 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  505 

Right  of  Way  Oil  Company  holds  a  lease  giving  it  the  right  to  develop 
the  oil  rights  on  said  right  of  way  under  the  said  railway  company. 

"(3)  At  the  time  S.  H.  Veatch  made  the  deed  in  question,  he  was 
the  only  one  of  the  heirs  living  in  Texas,  and  was  the  duly  constituted 
agent  and  representative  under  written  power  of  attorney  of  his  sister, 
Fannie  Veatch,  and  of  his  brother  J.  J.  Veatch,  and  was  the  informal 
representative  looking  generally  after  the  Veatch  heirs'  landed  interests 
in  Texas  of  the  other  Veatch  heirs,  all  of  whom  lived  in  California.  He 
was  also  the  administrator  of  the  estate  of  John  A.  Veatch,  deceased,  ap- 
pointed and  acting  by  and  under  the  authority  of  Sabine  County  Probate 
Court  of  Sabine  County,  Tex.,  although  there  is  no  evidence  that  he  was 
acting  in  any  official  capacity  in  making  the  deed  in  question. 

"(4)  At  the  time  he  made  said  deed  conveying  to  the  East  Texas 
Railway  Company  the  200  foot  right  of  way  through  the  Veatch  survey, 
he  himself  owned  many  times  that  amount  in  acreage  in  his  own  right 
and  the  land  conveyed  to  and  used  by  the  railway  company  was  average 
in  value  per  acre  with  the  balance  of  the  survey,  all  of  which  was  open, 
practically  level,  prairie  land.  *     *     * 

"(6)  At  the  time  of  and  previous  to  the  procurement  of  the  said 
Veatch  deed,  Capt.  Geo.  W.  O'Brien  was  the  attorney  for  Kountze  Bros., 
the  promoters  of  the  original  railway  company,  regarding  said  matter, 
and  continued  up  to  the  year  of  1900  to  represent  said  railway  company 
as  local  attorney  at  Beaumont.     Capt.  O'Brien  died  about  May,  1909. 

"(7)  At  the  time  said  deed  was  made  by  S.  H.  Veatch  the  land  in  con- 
troversy— that  is,  what  is  known  as  Spindle  Top — was  generally  known 
and  regarded  as  prospective  oil  land.  It  had  been  so  known  for  many 
years  prior  to  that  time,  and  had  been  the  subject  of  much  speculation  and 
conversation  as  prospective  oil  and  mineral  land,  there  being  on  the  land 
and  near  where  said  railway  company  line  is  located  mineral  springs, 
surface  indications,  such  as  the  bubbling  of  natural  gas,  etc.,  indicative  of 
what  was  then  regarded  as  oil  deposits.  There  was  no  timber  or  stone 
on  the  surface.     *     *     * 

"(9)  Soon  after  said  right  of  way  deed  was  obtained  from  S.  H. 
Veatch,  the  said  S.  H.  Veatch  entered  into  a  contract  with  Geo.  W. 
O'Brien  and  A.  S.  John,  under  the  firm  name  of  O'Brien  &  John,  purport- 
ing to  act  for  himself  and  the  other  Veatch  heirs,  for  the  recovery  by 
them  as  attorneys  of  said  land  from  certain  other  adversary  claimants, 
and  for  the  clearing  up  of  the  Veatch  title  to  said  land,  agreeing  to  give 
them  one-half  for  their  services.    • 

"(10)  A  suit  was  instituted  and  judgment  was  obtained  for  said  land, 
except  500  acres  in  the  southeast  portion  of  the  survey,  not  adjacant  to 
said  railway,  which  was  conceded  to  adversary  claimants  in  compromise- 


506  Water  and  Mineral  Cases.  [Texas 

Therefore' the  other  Veatch  heirs  who  had  not  formerly  empowered  by 
writing  S.  H.  Veatch  to  make  said  contract  with  O'Brien  &  John  recog- 
nized and  adopted  the  same  as  binding  upon  them,  and  about  the  year 
1891  all  the  title  remaining  in  said  heirs  after  the  conveyance  to  the  said 
O'Brien  &  John  of  the  said  one-half  interest  was  conveyed  by  their  deeds 
to  the  said  O'Brien  and  then  widow  of  A.  S.  John,  W.  C.  Averill,  P.  S. 
Watts,  and  J.  F.  Lanier,  the  last  three  named  having  purchased  from 
some  of  the  heirs,  and  the  former  having  purchased  from  the  remainder. 

"(11)  About  the  year  1892  the  plaintiff  Gladys  City  Oil,  Gas  & 
Manufacturing  Company  was  organized  for  the  purpose  of  exploiting 
said  land  for  oil  and  gas ;  the  moving  spirit  and  principal  owner  thereof 
being  the  said  Capt.  O'Brien,  who  remained  the  president  of  the  com- 
pany from  its  organization  until  his  death. 

"(12)  Soon  after  its  organization,  a  portion  of  said  survey  on  either 
side  of  said  railway  right  of  way  was  subdivided  into  lots  and  blocks  in 
the  form  of  a  town  site,  called  the  Gladys  City  Subdivision  of  said  survey. 
In  surveying  out  and  platting  said  town  site  and  subdivision  the  said 
Gladys  City  Oil,  Gas  &  Manufacturing  Company  respected  the  said 
railway  company's  right  of  way  200  feet  wide  and  indicated  the  same  on 
its  map  and  plat  and  map  of  said  subdivision,  and  recognized  the  ap- 
propriation of  200  feet  claimed  by  the  railway  company  through  and 
under  said  Veatch  deed. 

"(13)  There  was  never  any  other  division  or  partition  of  said  survey 
between  said  oil  and  gas  company  and  said  railway  company  except  the 
actual  appropriation  by  the  railway  company  of  said  200-foot  strip  and 
acts  in  ratification  thereof  by  the  said  oil  and  gas  company,  which  never 
at  any  time  questioned  the  right  of  the  said  railway  company  to  said 
right  of  way. 

"(14)  After  repeated  efforts  to  find  oil  on  said  land,  said  Gladys  City 
Oil,  Gas  &  Manufacturing  Company  finally  in  1900  gave  a  lease  to  A.  F. 
Lucas  to  all  of  said  survey  owned  by  it,  giving  him  the  exclusive  right, 
on  a  royalty  basis,  to  exploit  said  land,  develop  it  for  oil  for  a  period  of 
20  years.  Lucas  brought  in  an  oil  well  which  proved  a  portion  of  said 
land  as  oil  bearing  in  the  year  1901.  He  then  assigned  his  rights  to  the 
present  plaintiff,  J.  M.  Guffey  Petroleum  Company,  and  the  section  of 
said  land  lying  east  of  said  railway  right  of  way  has  been  since  then 
developed  as  an  oil  field.     *     *     * 

"(17)  The  Right  of  Way  Oil  Company,  holding  a  lease  from  the 
Texas  &  New  Orleans  Railway  Company,  through  Oswald  S.  Parker, 
trustee,  its  immediate  lessor,  about  November,  1909,  drilled  a  well  on  said 
right  of  way  as  alleged  in  the  plaintiff's  petition,  obtained  oil  and  equipped 
the  same  and  has  since  operated  it  under  pump,  producing  a  production 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  507 

up  to  the  time  of  the  trial  of  this  cause  of  7,509-54  barrels  of  oil  of  the 
value  of  So  cents  per  barrel,  which  oil  it  has  run  to  the  Gulf  Pipe  Line 
Company  and  sold  to  it  at  8o  cents  per  barrel.  The  proceeds  thereof 
have  been  paid  over  to  the  Right  of  Way  Oil  Company  by  the  said  pipe 
line  company  upon  the  giving  of  an  indemnity  bond  against  this  suit. 

"Ci8)  The  J.  M.  Guffev  Petroleum  Company  served  written  notices 
bv  registered  mail  on  the  officers  of  the  Right  of  Way  Oil  Company  as 
soon  'as  said  well  was  started  to  be  drilled,  that  they  claimed  the  oil 
and  mineral  rights  on  said  right  of  way  and  protested  against  the  action 
of  the  Right  of  Way  Oil  Company  in  drilling  said  well,  but  the  protest 
was  not  heeded  by  the  Right  of  Way  Oil  Company." 

In  addition  to  these  conclusions  of  the  trial  court,  which  we  have 
adopted,  we  find  the  following: 

The  plaintiff  Gladys  City  Company  held  under  deeds  from  heirs  of 
John  A.  Veatch  the  title  to  all  of  the  land  of  the  Veatch  survey,  except 
certain  portions  not  necessary  to  refer  to,  and  except  whatever  interest 
the  railroad  company  acquired  under  the  right  of  way  deeds^  of  S.^  H. 
Veatch  and  others  referred  to.     The  railway  company  has  claimed  since 
building  its  road,  and  used  the  same  for  railway  purposes,  a  right  of  way 
200  feet  wide  through  that  part  of  the  land  laid  off  as  Gladys  City,  which 
includes  that  part  of  its  right  of  way  on  which  the  well  in  question  is 
located,  and  this  claim  has  been  acquiesced  in  by  plaintiffs.    It  does  not  ap- 
pear that  it  has  claimed  more  than  ioo  feet  right  of  way  over  that  portion 
of  the  survey  lying  north  of  the  Gladys  City  tract.    The  right  of  way  is 
marked  by  T-rails  set  in  the  ground  at  intervals.    These  rails  along  the 
line  of  the  right  of  way  through  Gladys  City  tract  are  placed  ioo  feet 
from  the  center  of  the  track,  and  north  of  this  tract  50  feet  from  the 
center  of  the  track,  on  each  side  of  the  railroad.    When  the  Gladys  City 
Company  acquired  title,  it  laid  off  that  part  known  as  Gladys  City  into 
lots,  blocks,  and  streets,  respecting  the  railroad's  claim  to  a  right  of  way 
200  feet  wide,  but  that  part  of  the  land  lying  north  of  the  Gladys  City 
tract  was  laid  off  into  farm  lots,  the  lines  of  which  were  laid  off  to  within 
co  feet  of  the  center  of  the  railroad  track,  leaving  a  right  of  way  100 
feet  in  width.    This  right  of  way  has  been  continuously  since  used  by  the 
railroad  company  as  and  for  railway  purposes,  the  present  line  being 
a  part  of  a  trunk  line  from  Sabine  to  Dallas,  but  such  use  has  been  only 
such  as  is  made  of  a  right  of  way  easement  by  railroad  companies. 

On  February  4,  1891,  Geo.  W.  O'Brien  and  Emma  E.  John,  who  owned 
one-half  of  the  Veatch  survey,  executed  to  the  Sabine  &  East  Texas  Rail- 
way Company  a  deed  to  a  right  of  way  "equal  to  their  interest"  in  a  strip 
of  land  100  feet  wide  over  the  said  survey,  and  on  February  6th  W.  C. 
Averill  and  P.  S.  Watts,   who  owned   four-fifths  of  one-half  interest, 


508  Water  and  Mineral  Cases.  [Texas 

executed  a  similar  deed  to  a  right  of  way  to  their  interest  in  a  strip  of  ioo 
feet  wide.  These  deeds  were  duly  recorded,  and  delivered  to  the  railroad 
company,  and  the  evidence  is  sufficient  to  authorize  the  conclusion  that 
their  execution  was  procured  by  the  company.  Oil  under  the  land  is 
found  at  a  depth  of  from  800  to  1,000  feet,  and  it  costs  $4,000  to  $4,500 
to  drill  and  equip  a  well  similar  to  that  of  the  Right  of  Way  Oil  Com- 
pany. At  the  time  S.  H.  Veatch  executed  the  deed  referred  to  he  owned 
an  undivided  one-sixth  interest  in  the  Veatch  survey  of  about  3,000 
acres,  and  the  land,  at  the  time,  was  all  of  about  the  same  market  value. 
There  has  never  been  a  partition  of  the  land  among  the  heirs,  the  interest 
of  each  having  been  acquired  by  the  predecessors  in  title  of  the  Gladys 
City  Company  by  which  they  are  now  owned. 

By  the  first  assignment  of  error  appellants  assail  the  following  conclu- 
sion of  law  of  the  trial  court:  "The  deed  of  S.  H.  Veatch,  made  in  1881, 
conveyed  to  the  grantee  therein,  the  East  Texas  Railway  Company,  a 
right  of  way  through  said  Veatch  survey  of  land  200  feet  in  width,  together 
with  the  right  of  the  railway  company  to  take  and  use  all  the  minerals 
contained  within,  or  that  might  be  discovered  upon  said  right  of  way.  I 
construe  the  deed  as  conveying  the  same  right  to  the  railway  company, 
both  as  to  the  surface  and  to  the  minerals  beneath  the  surface,  as  any 
ordinary  absolute  fee-simple  conveyance  could  convey  such  rights." 

Under  this  assignment,  appellants  state  the  following  proposition: 
"Where  the  grantor  in  a  deed,  in  consideration  of  the  benefits  to  accrue  to 
him  by  the  building  and  operating  of  a  railway  across  his  land,  conveys 
a  right  of  way  to  a  railway  company  'for  the  purpose  of  operating  and 
maintaining  its  railroad/  and  such  deed  contains  this  provision,  'Together 
with  the  right  to  take  and  use  all  the  timber,  earth,  stone  and  mineral 
existing,  or  that  may  be  found  within  the  right  of  way  hereby  granted,' 
and  has  habendum  clause  as  follows :  'To  have  and  to  hold,  so  long  as 
the  same,  or  any  part  thereof,  may  be  occupied  for  the  purpose  of  con- 
structing, operating  or  maintaining  its  railway' — such  deed  conveys  onlv 
a  right  of  way  or  easement  over  the  land,  and  passes  the  right  to  use 
such  surface  minerals  only  as  would  be  useful  in  constructing  and  main- 
taining the  railway,  and  does  not  confer  any  right  on  the  railway  to  mine 
for  oil  or  minerals  under  the  surface,  and  especially  would  such  deed  not 
pass  any  right  to  fluid  minerals,  such  as  oil  or  gas,  which  could  not  be 
used  in  constructing  and  maintaining  a  railway."  We  copy  this  prop- 
osition in  full  because  it  substantially  embodies  our  conclusions  as  to  the 
law  of  the  case,  and  practically  disposes  of  the  questions  involved  in 
this  appeal. 

Upon  the  issue  thus  presented  the  entire  case  turns,  and  the  parties 
have  presented  their  respective  contentions  as  to  the  construction  of  the 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  509 

deed  of  S.  H.  Veatch  to  the  East  Texas  Railway  Company,  set  out  in  the 
findings  of  fact,  with  great  ability  and  with  exhaustive  citations  of  au- 
thority in  support  thereof.  Both  parties  insist  that  the  deed  is  unam- 
biguous, and  that  there  is  no  necessity  to  resort  to  parol  evidence  to 
explain  its  meaning,  which  is  to  be  gathered  from  the  terms  of  the  deed 
itself,  but  this  is  about  the  only  proposition  upon  which  they  agree,  and 
upon  this  proposition  the  trial  court  agreed  with  them,  giving  to  the  deed 
the  construction  contended  for  by  appellees;  that  is,  that  the  deed  con- 
veyed what  was  in  substance  and  effect  the  fee,  determinable  upon  the  hap- 
pening of  the  contingency  set  out  in  the  habendum  clause,  that  is,  when 
the  land  should  cease  to  be  "occupied  and  used  for  the  purpose  of  con- 
structing, operating  and  maintaining  the  said  railway."  If,  in  fact,  the 
words,  "together  with  the  right  to  take  and  use  all  timber,  earthstone  and 
mineral  existing,  or  that  may  be  found  within  the  right  of  way  hereby 
granted,"  be  construed  to  carry  with  it  the  right  to  take  and  use  all 
minerals,  whether  on  or  under  the  surface,  then  indeed  nothing  of  sub- 
stantial right  is  omitted  that  would  be  included  in  a  general  conveyance, 
not  of  a  right  of  way  only,  but  of  a  strip  of  land  200  feet  wide  across 
the  land  referred  to. 

The  right  to  take  and  use  all  minerals,  if  it  includes  subsurface 
minerals,  would  include  not  only  the  right  to  take  and  use  petroleum  oil, 
but  everything  else  coming  under  the  definition  of  "minerals  upon  or 
under  the  surface" ;  that  is,  "any  constituent  of  the  earth's  crust."  Cen- 
tury Dictionary,  title  "Mineral."  See,  also,  5  Words  &  Phrases,  title 
"Mineral."  Full  ownership  of  and  title  to  the  land  could  carry  with  it 
nothing  more  of  substantial  right.  So,  if  the  terms  used  in  the  deed 
giving  the  right  to  use  all  minerals  are  to  be  taken  in  this  broad  sense,  the 
title  conveyed  was  in  substantial  effect  a  base  or  determinable  fee  as 
contended  by  appellees.  The  question  presented  then  is  as  to  the  con- 
struction to  be  given  to  the  deed  with  special  reference  to  the  language 
used  giving  this  right. 

It  is  a  cardinal  rule  that  deeds  must  be  so  construed  as  to  effect- 
uate, if  possible,  the  intention  of  the  grantor.  This  intention  is  to  be 
gathered  from  the  entire  instrument.  If  the  expressed  meaning  is  plain 
upon  the  face  of  the  instrument,  it  will  control.  Effect  and  meaning 
must  be  given  to  every  part  of  the  deed;  each  clause  being  considered 
separately  and  being  governed  by  the  intent  deduciblf  from  the  entire  in- 
strument, and  separate  parts  being  viewed  in  the  light  of  other  parts. 
The  intent  must  be  primarily  gathered  from  a  fair  consideration  of  the 
entire  instrument  and  the  language  employed  therein,  and  should  be 
consistent  with  the  terms  of  the  deed,  including  its  scope  and  subject- 
matter.     13  Cyc.  601  et  seq.;  Hancock  v.  Butler,  21  Tex.  804;  Simonton 


510  Water  and  Mineral  Cases.  [Texas 

v.  White,  93  Tex.  56,  53  S.  W.  339,  77  Am.  St.  Rep.  824 ;  Armstrong  v. 
Lake  Champlain  Granite  Co.,  147  N.  Y.  495,  42  N.  E.  186,  49  Am.  St. 
Rep.  683. 

We  think  it  would  be  indisputably  clear  that  the  grant  in  the  deed  "to 
the  East  Texas  Railway  Company,  for  the  purpose  of  constructing,  ope- 
rating and  maintaining  its  railroad,  the  right  of  way  two  hundred  feet  in 
width  over  and  upon  the  above  described  tract  of  land,"  conveyed  no  more 
than  a  right  of  way — that  is,  an  easement  of  the  extent  named — unless 
the  additional  words,  "together  with  the  right  to  take  and  use  all  the 
timber,  earth,  stone  and  mineral  existing  or  to  be  found  within  the 
the  right  of  way  hereby  granted,"  express  an  intention  to  convey  the  land 
itself.  Indeed,  the  grantor  seems  to  be  careful  in  the  language  used  to 
express  nothing  more  than  an  intention  to  convey  a  right  of  way  or 
easement.  The  language  used  is  "the  right  of  way  over  and  upon" 
the  land,  and  the  purpose  is  stated  to  be  "the  constructing,  operating  and 
maintaining  its  railroad."  It  is  hardly  conceivable  that,  if  the  grantor 
had  intended  to  convey  rights  so  extensive  as  are  claimed  by  appellees 
under  this  deed,  he  would  have  used  this  language,  in  the  granting  part 
of  the  deed,  and  sought  to  accomplish  such  purpose  by  merely  adding 
to  this  language  "together  with  the  right  to  take  and  use  all  the  timber, 
earth,  stone,  and  mineral,"  etc.  It  is  to  be  further  noted  that  the  purpose 
of  the  grant,  according  to  a  proper  construction  of  the  language  of  the 
deed — that  is,  to  construct,  operate,  and  maintain  its  railroad — applies  to, 
and  limits  also,  this  right  to  take  and  use,  as  well  as  the  grant  of  the  right 
of  way.  The  right  of  way  and  the  right  to  take  and  use,  etc.,  are  both 
"sold,  granted  and  conveyed"  for  the  express  purpose  stated  of  construct- 
ing, operating,  and  maintaining  its  railroad.  It  is  altogether  unreason- 
able to  suppose  that  it  was  intended  to  grant  anything  more  than  a  mere 
right  of  way  "over  and  upon"  the  land,  together  with  the  right  to  take 
and  use  such  timber,  earth,  stone,  and  mineral  of  whatever  character 
there  might  be  found  to  exist  upon  the  surface.  The  right  of  way  con- 
veyed is  certainly  limited  by  its  terms  to  the  surface,  and  the  right 
to  take  and  use  the  substances  named  is  limited  to  those  found  "within 
the  right  of  way."  If  both  parties  had  known  that  petroleum  oil,  which 
is  in  fact  a  mineral,  underlay  the  land,  if  they  could  have,  in  1881,  seen 
so  far  into  the  future  as  to  foresee  that  such  oil  would  one  day  be  used 
as  fuel  for  locomotive  engines,  it  is  hardly  conceivable  that  they  would 
have  used  the  language  used  in  this  deed  to  express  an  intention  to  grant 
to  the  railroad  company  the  right  to  bore  a  well  and  take  from  1,000 
feet  below  the  surface  the  oil  which  lay  there.  Such  construction  would 
also  carry  with  it  the  right  to  take  coal  or  iron  or  copper  or  any  other 
substance  coming  within  the  meaning  of  minerals,  and  which  might  in  any 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  &H 

way  be  used  in  the  construction  of  a  railroad  or  the  equipment  and  ope- 
ration of  its  trains.  If  it  had  been  intended  to  grant  such  rights,  why  say 
anything  about  "a  right  of  way  over  and  upon"  the  land.  The  right 
to  explore  for  and  take  from  below  the  surface  oil,  coal,  iron,  and  such 
other  minerals  as  might  be  there  found  at  great  depth,  provided  only 
they  might  be  used  for  the  purposes  referred  to,  is  utterly  inconsistent 
with  the  substantial  purpose  of  the  grant,  as  expressed  in  the  deed. 

We  think  it  is  also  of  much  significance  in  construing  this  deed 
that  the  grant  is  made  to  take  and  use  "all  timber,  earth  and  stone" 
in  connection  with  minerals.  These  substances  are  found  upon  the  sur- 
face. Earth  and  stone  are  likewise  minerals,  and,  by  adding  "all  min- 
erals," it  is  reasonable  to  suppose  that  it  was  intended  to  go  no  further 
than  to  grant  the  right  to  take  such  other  minerals  as  possessed  this 
same  general  characteristic  of  surface  mineral,  such  as  might  be  used 
in  construction  of  the  railroad  in  the  same  way.  This  is  the  familiar 
doctrine  of  ejusdem  generis;  that  is,  that  when  a  grantor  in  a  deed  or 
will  makes  use,  first,  of  terms  each  evidently  confined  and  limited  to  a 
particular  class  of  a  known  species  of  things,  and  then,  after  such  specific 
enumeration,  subjoins  a  term  of  very  extensive  signification,  this  term, 
however  general  and  comprehensive  in  its  possible  import,  when  thus 
used  embraces  only  thines  "ejusdem  generis" — that  is.  of  the  same  kind 
or  species  with  those  comprehended  by  the  preceding  limited  and  con- 
fined terms.  3  Words  &  Phrases,  title  "Ejusdem  Generis,"  p.  2328;  Ex 
Parte  Leland,  1  Nott  &  McC.  (S.  C.)  462;  Spalding  v.  People,  172  111. 
49,  49  N.  E.  996;  Bills  v.  Putnam,  64  N.  PL  561,  15  Atl.  138;  Benton 
v.  Benton,  63  N.  H.  295,  56  Am.  Rep.  512 ;  Misch  v.  Russell,  136  111.  25,  26 
N.  E.  528.  12  L.  R.  A.  125. 

"The  words  'right  of  way/  if  not  defined,  are  expressive  of  the 
very  nature  of  the  right  ordinarily  held  by  railway  companies  in  the 
lands  over  which  their  roads  run — a  right  to  use  the  land  only  for  railway 
purposes — an  easement."  Calcasieu  Lumber  Co.  v.  Harris,  77  Tex.  23,  13 
S.  W.  453.  "It  is  true  that  the  terms  have  a  twofold  signification.  It 
sometimes  is  used  to  mean  the  mere  intangible  right  to  cross ;  a  right  of 
crossing ;  a  right  of  way.  It  is  often  used  to  otherwise  indicate  that  strip 
which  the  railroad  company  appropriates  for  its  use,  and  upon  which  it 
builds  its  track."  Keener  v.  Union  Pac.  Ry.  Co.  (C.  C),  31  Fed.  128; 
Joy  v.  St.  Louis,  138  U.  S.  1,  11  Sup.  Ct.  243,  34  L.  Ed.  843.  The  use 
of  the  term  "right  of  way"  will  not  limit  the  conveyance  to  a  mere  ease- 
ment, if  the  other  parts  of  the  conveyance  are  sufficient,  and  indicate  an 
intention,  to  convey  a  greater  estate,  but  in  such  case  will  be  considered 
as  descriptive  of  the  land  conveyed.  Nor  will  a  clearly  expressed  purpose 
to  convey  the  fee  be  limited  by  words  expressing  the  purpose  for  which 


512  Water  and  Mineral  Cases.  [Texas 

the  conveyance  is  made.  We  are  of  the  opinion,  however,  that  there  is 
nothing  in  the  language  of  the  Veatch  deed  to  extend  the  meaning  of 
the  words  "right  of  way"  beyond  their  ordinary  signification.  On  the 
contrary,  such  language  rather  emphasizes  the  intention  to  use  those 
words  to  accomplish  the  purpose  for  which  they  are  ordinarily  used,  to 
convey  only  an  easement.  The  provisions  about  the  right  to  take  min- 
erals cannot  be  taken  to  extend  the  meaning  of  the  words  "right  of  way 
over  and  upon  the  land,"  but  these  latter  words,  it  seems  clear  to  us, 
must  be  construed  as  limited  by  the  terms  of  the  conveyance  of  "the  right 
of  way  over  and  upon  the  land."  7  Words  &  Phrases,  title  "Right  of 
Way."' 

We  are  of  the  opinion  that  there  is  in  this  deed  no  room  for  the 
operation  of  the  rule  that  the  language  of  a  deed  must  be  construed  most 
strongly  against  the  grantor.  In  the  first  place,  it  was  shown  that  the 
deed  was  drawn  according  to  a  printed  form  prepared  by  the  grantee, 
and,  as  thus  prepared,  was  presented  to  and  signed  by  the  grantor.  It  is 
in  the  language  not  of  the  grantor,  but  of  the  grantee.  In  such  case 
the  rule  should  be  reversed  and  the  deed  construed  most  strongly  against 
the  grantee,  who  prepared  it  and  selected  the  language  used.  Uhl  v. 
Ohio  Ry.  Co.,  51  W.  Va.  106,  41  S.  E.  340;  Lockwood  v.  Railway  Co., 
103  Fed.  243,  43  C.  C.  A.  202.  In  the  second  place,  this  rule  is  subservient 
to  the  ascertained  intention  of  the  parties,  and  is  not  to  be  applied  or 
invoked  until  all  other  rules  of  construction  fail.  13  Cyc,  pp.  609,  610. 
The  rule  cannot  be  of  any  benefit  to  appellees  in  the  construction  of  this 
deed.  Our  conclusion  is  that  the  deed  conveyed  only  a  right  of  way  or 
easement  "over  and  upon"  the  land,  and  that  the  right  to  take  and  use 
mineral  which  existed  or  might  be  found  within  the  right  of  way  did  not 
include  the  right  to  sink  wells  and  take  the  oil  under  the  same.  That 
the  grant  of  a  right  of  way  merely  did  not  carry  this  right  is  we  think 
too  well  established  to  be  questioned.  District  of  Columbia  v.  Robin- 
son, 180  U.  S.  92,  21  Sup.  Ct.  283,  45  L.  Ed.  440;  Lyon  v.  McDonald,  78 
Tex.  71,  14  S.  W.  261,  9  L.  R.  A.  295;  O'Neal  v.  City  of  Sherman,  77 
Tex.  182,  14  S.  W.  31,  19  Am.  St.  Rep.  743;  Calcasieu  Lumber  Company 
v.  Harris,  77  Tex.  22,  13  S.  W.  453;  Muhle  v.  Railway  Co.,  86  Tex.  459, 
25  S.  W.  607 ;  Couch  v.  Railway  Co.,  99  Tex.  468,  90  S.  W.  860 ;  Clut- 
ter v.  Davis,  25  Tex.  Civ.  App.  532,  62  S.  W.  1107;  Uhl  v.  Railway  Co., 
51  W.  Va.  106,  41  S.  E.  341 ;  Lockwood  v.  Railway  Co.,  103  Fed.  243,  43 
C.  C.  A.  202;  Vermilyea  v.  Railroad  Co.,  66  Iowa  606,  24  N.  W.  234,  55 
Am.  Rep.  279;  Railroad  Co.  v.  Karthaus,  150  Ala.  633,  43  So.  791; 
Smith  v.  Ffolloway,  124  Ind.  329,  24  N.  E.  886;  2  Elliott  on  Railroads  (2d 
Ed.),  §  938. 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  513 

As  to  the  extent  of  the  right  of  way  to  which  the  railway  company  is 
entitled,  we  are  of  the  opinion  that  by  the  long  acquiescence  of  the  Gladys 
City  Company  in  the  claim  of  the  railway  company,  and  the  express  con- 
cession of  appellees  in  their  petition,  such  right  of  way  through  the  Gladys 
City  tract  is  to  the  extent  of  ioo  feet  in  width  from  the  center  of  the 
railway  track  on  each  side,  or  200  feet  in  width.  The  claim  of  the  rail- 
way company  to  this  extent  is  not  disputed.  There  has  been  no  such 
acquiescence  as  to  the  200  feet  north  of  the  Gladys  City  tract,  and,  as 
to  this  part  of  their  line,  the  railway  company  does  not  seem  to  have 
asserted  any  claim  except  to  a  right  of  way  100  feet  wide,  which  is  the 
extent  of  the  right  of  way  granted  by  the  deeds  of  O'Brien  and  others. 
Neither  by  estoppel  nor  limitation  have  appellees  acquired  a  right  to  a 
right  of  way  of  greater  extent  on  this  part  of  their  line.  This  renders 
it  unnecessary  to  decide  several  interesting  questions  presented  as  to  the 
rights  of  appellees  under  the  deed  of  Veatch,  who,  in  fact,  only  owned 
an  undivided  one-sixth  interest  in  the  land,  if  it  had  been  held  that  such 
deed  conveyed  also  the  right  to  take  the  oil,  as  to  which  right  there  had 
been  no  acquiescence,  estoppel  nor  limitation. 

The  third  assignment  is  unimportant  and  immaterial  in  view  of  our 
holding  under  the  first  assignment  of  error,  as  is  also  the  fourth  assign- 
ment. 

As  indicated  by  our  findings  of  fact,  we  are  of  the  opinion  that  the 
court  erred  in  its  finding  of  fact  as  set  out  in  the  fifth  assignment  of 
error,  "that  the  railway  company  entered  upon  the  Veatch  survey  and 
laid  out  its  right  of  way  200  feet  wide,  and  has  in  connection  with  its 
successor,  the  present  railway  company,  continuously  since  that  time  used 
said  land  as  and  for  railway  purposes."  This  finding  would  indicate 
that  the  railway  company  laid  out  and  has  since  used  and  occupied  200 
feet  across  the  entire  survey  as  a  right  of  way.  We  can  find  no  evi- 
dence to  authorize  this  finding  as  to  the  laying  out  and  occupying  of  a 
right  of  way  200  feet  wide  except  through  the  Gladys  City  tract,  or  that 
part  laid  off  into  lots,  blocks,  and  streets.  As  to  the  remainder  of  the 
land,  a  right  of  way  of  only  100  feet  was  so  laid  off  and  occupied,  as 
shown  by  our  fact  conclusions. 

In  the  view  we  have  taken  as  to  the  proper  construction  of  the  right 
of  way  deed,  the  finding  of  fact  complained  of  by  the  sixth  assignment 
of  error,  that  "at  the  time  the  deed  from  S.  H.  Veatch  to  the  East  Texas 
Railway  Company  was  executed  the  land  covered  thereby  was  regarded 
as  being  probably  underlaid  with  oil  and  gas  and  that  the  Sour  Springs 
mentioned  in  the  deed  were  well  known  to  both  parties  to  the  deed  as 
prospective  mineral  land,  and  as  indicating  the  presence  of  oil  and  gas," 
etc.,  was  immaterial.  While  there  was  some  evidence  introduced  tending 
W.  &  M.— 33 


514  Water  and  Mineral  Cases.  [Texas 

to  show  that  at  this  time  the  land  was  regarded  as  probably  underlaid 
with  oil,  this  fact  was  considered  immaterial  by  the  trial  court,  who, 
after  some  of  this  evidence  had  been  introduced  without  objection,  ex- 
cluded much  more  of  it  offered  by  appellee,  on  objection  of  appellants,  as 
immaterial.  What  was  introduced  is  sufficient  probably  to  authorize 
the  conclusion  that  the  land  was  regarded  as  probably  underlaid  with  oil 
and  gas,  as  found  by  the  court  in  the  seventh  conclusion  of  fact,  not  ob- 
jected to,  but  we  do  not  think  that  the  evidence  is  sufficient  to  authorize 
the  conclusion  that  this  was  known  to  S.  H.  Veatch  at  the  time  of  the 
execution  of  the  deed.  We  approve,  and  hereby  adopt  the  conclusions  em- 
braced in  the  eighth  paragraph  of  the  court's  conclusions  of  fact,  except 
that  portion  thereof  which  finds  that  S.  H.  Veatch  knew,  at  the  time  he 
executed  the  deed,  that  the  land  was  probably  oil  land.  This,  however, 
we  do  not  think  material. 

With  regard  to  the  seventh  assignment  of  error,  we  think  the  trial 
court  erred  in  so  much  of  its  tenth  finding  of  fact  as  finds  that  "there 
was  no  evidence  as  to  any  other  official  of  the  railway  company  taking 
over  or  procuring,  or  even  having  knowledge  of  the  execution  of  the 
deeds  for  the  ioo-foot  right  of  way.  These  deeds  were  procured  by 
Geo.  W.  O'Brien,  attorney  of  the  railway  company,  were  delivered  to  it 
and  kept  and  produced  upon  the  trial  of  this  case  by  it.  This  not  only 
tends  to  show,  but  unexplained  or  uncontradicted  conclusively  shows, 
that  the  deeds  were  taken  for  the  benefit  of  the  railway  company,  and 
with  its  knowledge  and  by  its  procurement.  With  this  exception  the 
conclusions  of  the  court  in  its  tenth  finding  of  fact  are  adopted  by  us. 

With  regard  to  the  eighth  assignment  of  error  complaining  of  the 
finding  of  the  court  in  its  fifteenth  finding  of  fact,  "that  during  the 
year  iqoi  the  railway  company  drilled  a  well  in  search  for  oil  on  its 
right  of  way  on  said  Veatch  survey,"  we  are  inclined  to  think  that  this 
finding  is  not  supported  by  the  evidence.  The  evidence  tends  to  show 
that  this  well  was  in  fact  on  the  Douthitt  survey,  which,  it  seems  to  have 
been  claimed,  was  in  conflict  with  the  Veatch.  At  any  rate,  it  could  not 
be  concluded  from  the  fact  that  appellants  made  no  move  to  enjoin  or 
prevent  the  boring  of  this  well,  which  turned  out  to  be  a  non-producer, 
that  appellants  acquiesced  thereby  in  the  claim  of  appellees  to  the  oil 
under  the  200  foot  right  of  way  across  the  Veatch  survey  under  the 
deed  from  S.  H.  Veatch. 

Bv  their  ninth  assignment  of  error  appellants  complain  of  that 
part  of  the  fifteenth  finding  of  the  trial  court  that  "neither  the  plaintiff, 
Gladys  City  Company,  nor  the  Guffey  Company,  ever  claimed  any  right 
of  dominion  over  or  upon  the  right  of  way  up  to  about  the  time  this 
suit  was   filed."     As  ground   for  their  complaint,   it   is   urged    in  the 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  515 

assignment  that  the  evidence  showed  that  in  1904,  in  making  a  settlement 
with  the  Howell-Trench  claimants,  both  the  Gladys  City  Company  and 
the  Guffey  Company  did  claim  and  assert  a  right  to  the  oil  underlying 
said  right  of  way.  This  seems  to  be  a  fact,  as  in  the  deeds  executed  in 
carrying  out  the  settlement  referred  to  it  was  expressly  stipulated  that 
the  Gladys  City  Company  did  not  part  with  any  of  its  rights  to  the 
minerals  under  the  right  of  way,  and  that  the  same  mineral  rights  were 
reserved  in  the  agreed  decree  in  the  federal  court  in  1904,  but  this  does 
not  impeach  the  court's  finding  objected  to,  which  refers  to  nonclaim  of 
any  right  of  dominion  "over  or  upon"  the  right  of  way.  The  objection 
thus  made  to  the  finding  in  paragraph  15  of  the  court's  conclusions  of 
fact  must  therefore  be  overruled. 

The  objection  to  the  finding  in  the  sixteenth  conclusion  of  fact  that, 
"in  the  settlement  of  what  is  known  as  the  Trench-Howell  litigation,  the 
parties,  claiming  adversely  to  the  Veatch  heirs  and  their  title,  were 
awarded  certain  small  portions  of  the  land,  some  of  which  was  laid  off 
abutting  said  200  foot  right  of  way;  that  in  the  settlement  the  Gladys 
City  Oil,  Gas  &  Manufacturing  Company  and  the  J.  M.  Guffey  Petroleum 
Company  recognized  the  claim  of  the  railway  company  to  its  200-foot 
right  of  way  by  calling  for  the  same  in  the  conveyances  made  by  them  to 
the  adversary  claimants  of  the  portion  of  said  land  abutting  on  said  right 
of  wav" — is  technically  sound,  in  that  in  the  deeds  referred  to  the  tracts 
conveyed  are  described  as  running  to  within  150  feet  of  the  railroad 
track,  instead  of  to  the  right  of  way.  But  the  finding  i's  substantially 
correct,  as  this  point,  150  feet  from  the  railroad  track,  would  bring  the 
tracts  conveyed  to  the  line  of  a  50-foot  street  laid  off  by  the  Gladys  City 
Company  between  their  property  line  and  the  line  of  the  right  of  way 
extending  100  feet  on  each  side  of  the  center  of  the  track.  The  finding 
is  thus  substantially  correct,  and  the  objection  is  overruled. 

The  eleventh  assignment  of  error,  which  complains  of  omissions 
to  find  certain  facts,  cannot  be  sustained.  It  is  believed  to  be  the  rule 
that  where  the  trial  court  files  conclusions  of  fact,  if  any  further  findings 
than  those  embraced  in  the  conclusions  are  desired,  the  proper  course 
is  to  request  specific  findings  upon  such  points,  in  the  absence  of  which 
the  mere  omission  thereof  in  the  court's  conclusions  cannot  generally 
be  availed  of  on  appeal. 

Appellants  requested  the  court  to  make  certain  specific  findings 
of  fact,  which  request  was  refused,  and  to  the  ruling  appellants  took  a 
bill  of  exceptions,  and  the  point  is  presented  by  the  twelfth  assignment 
of  error.  It  is  contended  by  appellants,  and  the  contention  is  supported 
by  the  statement  subjoined  to  the  proposition,  that  the  facts  thus  re- 
quested to  be  found  by  the  court  are  established  by  the  undisputed  evi- 


516  Water  and  Mineral  Cases.  [Texas 

dence.  In  the  various  briefs,  arguments,  supplemental  briefs,  etc.,  of 
appellees,  we  have  not  been  able  to  find  any  specific  answer  to  this  as- 
signment, or  any  attempt  to  deny  the  truth  of  the  statement  made  as  to 
the  evidence  of  the  facts  embraced  in  the  requested  findings.  In  this 
state  of  the  record,  we  would  be  authorized,  if  not  required,  under  rule 
41  (67  S.  W.  xvii),  to  accept  these  statements  as  true.  So  much  of  such 
findings  as  are  not  substantially  embraced  in  other  findings  of  the  trial 
court  and  as  should  have  been  so  embraced  we  have  embraced  in  our  con- 
clusions of  fact.  The  most  material  of  such  findings  is  that  appellee  has 
claimed  from  the  north  line  of  the  Gladys  City  tract  up  to  the  north  line 
of  the  Veatch  survey  a  right  of  way  only  100  feet  in  width.  We  cannot 
find  any  sufficient  evidence  to  support  the  statement  embraced  in  the 
court's  fifth  finding  of  fact,  "that  the  railroad  company  entered  upon 
the  Veatch  survey  and  laid  out  its  right  of  way  200  feet  wide  and  in 
connection  with  its  successor,  the  present  railway  company,  continuously 
used  the  said  land  as  and  for  railway  purposes,"  if  by  this  is  meant  a 
continuous  use  and  claim  of  the  20  feet.  Veatch  had  only  an  undivided 
one-sixth  interest  in  the  land  out  of  which  the  right  of  way  was  con- 
veyed in  1881.  In  1891,  the  attorney  for  the  railway  company  took  from 
parties  who  had  succeeded  to  the  title  of  all  of  the  Veatch  heirs,  including 
S.  H.  Veatch,  deeds  for  a  right  of  way  over  the  Veatch  survey  100  feet 
in  width,  and  they  do  not  seem  ever  to  have  asserted  a  claim  to  more 
than  the  100  feet  thus  conveyed,  except  over  that  part  of  the  land  included 
in  the  Gladys  City  tract,  and  as  to  this  appellants  do  not  contest  and  have 
acquiesced  in  the  claim  to  a  200-foot  right  of  way.  They  laid  out  the 
lots  in  Gladys  City  proper  with  reference  to  this  right  of  way,  but  from 
the  north  line  of  Gladys  City  proper  they  laid  off  the  land  owned  by 
them  into  farm  lots  only  allowing  for  a  right  of  way  100  feet  wide. 
We  do  not  understand  that  they  contend  here  that  appellees  have  not 
an  easement  or  right  of  way  200  feet  wide  over  that  part  of  the  land 
shown  by  the  map  to  have  been  laid  off  into  town  lots,  as  Gladys  City, 
and  100  feet  wide  north  of  that,  and  it  seems  to  us  that  that  is  all  appel- 
lees are  entitled  to  under  the  practically  undisputed  evidence.  The  trial 
court  found  that  the  railway  company,  appellee,  was  entitled  to  a  right 
of  way  200  feet  wide  over  the  entire  survey. 

While  the  court  was  requested  by  appellant  to  hear  evidence  and 
determine  the  extent  of  the  right  of  way  over  the  entire  survey,  and  they 
cannot  complain,  as  they  do  in  the  thirteenth  assignment,  that  the  court 
did  so,  on  the  ground  that  the  pleadings  did  not  authorize  it,  still  we  think 
the  court  was  in  error  in  finding  that  the  railway  company  had  a  right 
of  way  of  more  than  one  hundred  feet  in  width  over  that  part  of  the 
Veatch  survey  north  of  the  Gladys  City  tract. 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  517 

This  disposes  of  all  the  assignments  of  error,  but  there  is  another 
question  presented  which  has  not  been  passed  on.  It  is  claimed  by  ap- 
pellants in  their  petition,  and  by  their  briefs,  that  they  are  entitled  to  go 
upon  the  right  of  way  and  drill  for  and  take  oil  within  the  right  of  way. 
To  this  we  cannot  agree.  It  is  contended  that  the  fact  that  the  railway 
company  has  granted  this  right  to  an  independent  corporation,  the  Right 
of  Way  Oil  Company,  having  no  connection  with  the  railway  company, 
it  cannot  say  that  it  would  interfere  with  the  operation  of  its  business 
as  a  railway  company  for  appellants  to  do  the  same  thing.  It  is  an  an- 
swer to  this,  we  think,  that  the  voluntary  grant  by  the  railway  company 
of  the  right  of  another  to  occupy  a  part  of  its  right  of  way  to  the  exclu- 
sion of  the  railway  company  cannot  justify  the  occupation  of  any  part  of 
the  right  of  way  against  the  will  of  the  railway  company.  It  would  de- 
pend at  last  upon  whether  such  enforced  occupation  by  appellants  now 
would  be  an  infringement  of  the  right  of  the  railway  company.  This 
issue  was  not  passed  upon  by  the  court,  nor  are  there  any  findings  of  fact 
thereon,  but  enough  is  shown  to  clearly  indicate  that,  in  order  to  enjoy 
the  right  claimed,  appellants  would  have  to  appropriate  to  its  own  use 
exclusivelv  some  part  of  the  surface  of  the  ground  within  the  right  of 
way,  and  to  that  extent  exclude  appellee  railway  company  therefrom. 
This,  it  was  held  by  this  court  in  Olive  v.  Sabine  &  East  Texas  Ry. 
Co.,  ii  Tex.  Civ.  App.  208,  33  S.  W.  139,  in  which  a  writ  of  error  was 
refused,  would  be  an  infringement  of  the  rights  of  the  railway  company. 
In  view  of  the  great  length  of  this  opinion,  we  refrain  from  any  further 
discussion  of  this  question  beyond  a  reference  to  the  case  referred  to, 
which  we  think  is  decisive  of  the  question.  In  rendering  the  judgment 
the  title  of  appellant,  the  Gladys  City  Company,  will  be  recognized  to  the 
land,  subject  to  the  exclusive  use  and  possession  of  the  railway  company, 
but  the  right  of  appellants  to  enter  upon  the  right  of  way  for  the  purpose 
of  boring  for  oil  will  be  refused.  The  evidence  was  fully  developed  upon 
all  the  issues,  and  there  is  no  necessity  for  remanding  the  cause.  Our 
conclusion  is  that  the  judgment  should  be  rendered  by  this  court:  First, 
That  the  Texas  &  New  Orleans  Railway  Company  have  a  right  of  way 
across  the  Veatch  survey  100  feet  in  width,  except  that  part  thereof 
through  the  Gladys  City  tract,  as  to  which  it  has  a  right  of  way  200  feet 
in  width.  Second,  That  the  Gladys  City  Oil,  Gas  &  Manufacturing 
Company  has  the  fee-simple  title  to  this  land  subject  to  the  easement,  as 
aforesaid,  of  the  Texas  &  New  Orleans  Railway  Company,  so  long  as 
the  same  may  be  used  by  it  as  and  for  railway  purposes.  Third,  That 
the  Texas  &  New  Orleans  Railway  Company  has  no  right  to  the  oil  or 
other  minerals  beneath  the  surface  of  said  strip  comprising  its  right  of 
way,  as  aforesaid,  nor  to  sink  wells  and  extract  the  same,  but  that  such 


518  Water  and  Mineral  Cases.  [Texas 

oil  is  the  property  of  the  Gladys  City  Oil,  Gas  &  Manufacturing  Company 
and  of  its  lessee,  the  J.  M.  Guffey  Petroleum  Company.  Fourth,  That 
the  said  Gladys  City  Oil,  Gas  &  Manufacturing  Company  and  the  said 
J.  M.  Guffey  Petroleum  Company  have  no  right  to  go  upon  said  right  of 
way  and  occupy  the  same  for  the  purpose  of  sinking  wells  and  extracting 
the  oil.  Fifth,  That  the  said  appellants  recover  of  the  appellees  the 
value  as  found  by  the  trial  court  of  the  oil  extracted  by  the  Right  of 
Way  Oil  Company  through  the  well  bored  by  it  on  the  right  of  way  afore- 
said. Sixth,  That  the  Gulf  Pipe  Line  Company  have  judgment  over 
against  the  Right  of  Way  Oil  Company  for  whatever  amount  it  may  be 
required  to  pay  under  judgment  against  it. 

Let  the  judgment  be  so  entered. 

Reversed  and  rendered. 

On  Motion  for  Rehearing. 

It  is  proper  that  brief  reference  be  made  to  two  contentions  presented 
by  appellee  on  motion  for  rehearing. 

The  judgment  rendered  by  this  court  is  in  favor  of  the  Gladys 
City  Company  and  the  Guffey  Petroleum  Company.  If  it  was  error  to 
render  judgment  for  the  Guffey  Company,  it  is  not  one  that  operates  to 
the  prejudice  of  appellee,  but  only  to  the  prejudice  of  its  coplaintiff,  the 
Gladys  City  Company.  Whatever  rights  were  not  conferred  upon  the 
Guffey  Company  by  the  terms  of  the  lease  remain  in  the  Gladys  City 
Company.  The  judgment  is  in  favor  of  both  of  them  jointly,  and  it  is 
not  material  to  appellee  how  the  matter  is  settled  between  them. 

Appellee  further  contends  that  the  judgment  is  erroneous,  in  that 
it  awards  to  appellants  the  value  of  the  oil  delivered  to  the  Gulf  Pipe 
Line  Company  instead  of  such  value,  less  the  cost  of  extraction.  We 
quite  readily  agree  with  appellee  that  appellees  in  boring  the  well  and 
extracting  the  oil  acted  under  the  belief,  in  good  faith  and  upon  reason- 
able grounds  therefor,  that  they  had  a  right  to  do  so,  and  that  the  oil 
belonged  to  the  Texas  &  New  Orleans  Railway  Company.  In  such  case, 
under  proper  allegations  and  proof,  it  would  have  been  proper  to  have 
deducted  from  the  value  of  the  oil  in  the  tanks  of  the  Gulf  Pipe  Line  Com- 
pany the  reasonable  value  of  extracting  the  same.  Bender  v.  Brooks, 
127  S.  W.  170. 

But  there  are  neither  pleadings  nor  evidence  presenting  this 
issue.  The  plaintiffs  sued  for  the  value  of  this  oil,  alleged  to  be  80  cents 
per  barrel.  Neither  by  plea  nor  exceptions  was  this  measure  of  dam- 
ages controverted  or  put  in  issue.  There  are  neither  allegations  nor  proof 
as  to  the  value  of  extracting  the  oil.  The  court  found  the  quantity  of  oil 
and  its  value,  to  wit,  80  cents  per  barrel.     No  finding  as  to  the  cost  of 


1911]  Oil,  Gas  &  Mfg.  Co.  et  al.  v.  Oil  Co.  et  al.  519 

extraction  was  requested,  nor,  indeed,  could  such  finding  have  been  made 
upon  the  evidence.  The  court  does  find  the  cost  of  boring  the  well,  but 
this  alone  was  not  sufficient  either  for  the  trial  court  or  this  court  to  de- 
termine the  reasonable  cost  of  extraction,  so  as  to  determine  the 
measure  of  appellant's  recovery  under  the  rule  contended  for 
by  appellees.  No  reference  is  made  in  the  briefs  of  appellees,  nor  in  the 
oral  argument,  to  the  question  now  here  presented  for  the  first  time 
in  the  motion  for  a  rehearing.  In  the  circumstances  we  do  not  think 
that  our  judgment  is  erroneous  in  the  matter  complained  of,  as  the  case 
is  presented  by  the  record. 

The  motion  for  rehearing  is  overruled. 

Overruled. 


520 


Water  and  Mineral  Cases. 


[Montana 


BUTTE  CITY  SMOKE-HOUSE  LODE  CASES. 

[Supreme   Court  Montana,  January  21,   1887.] 

6  Mont.  397,  12  Pac.  858. 

1.  Mining   Claims — Patents — Courts   Will    Not   Go    Behind. 

Courts  will  not  go  behind  patents  and  ascertain  from  proofs  which  of  disputing 
parties  has  the  better  right,  where  neither  could  have,  by  his  patent  acquired  any 
right  or  title  to  the  property  granted  the  other  by  his  patent. 

2.  Same — Patent  Relates  to  Location. 

The  patent  to  a  mining  claim  relates  back  to  the  date  of  location  and  protects  it. 

3.  Same — Town-site  Patent  Cannot  Affect. 

No  interest  in,  or  title  to  a  valid  mining  location  can  be  acquired  by  a  town-site 
patent. 

4.  Mining   Patent — Town-site   Patent — District   Grants. 

There  is  no  conflict  between  a  mining  claim  patent  and  a  town-site  patent.  They 
evidence  distinct  grants,  and  cannot  conflict  with  one  another. 

5.  Mining   Patent — Town-Site    Patent — Authority  of   Land    Department. 

Officers  of  land  department  have  no  authority  to  convey  mining  claim  by  town-site 
patent  or  town  site  by  mining  claim  patent. 

6.  Same — Void   Restrictions  and    Exceptions. 

Restrictions  and  exceptions  not  authorized  by  law,  placed  in  patent  to  mining 
claim  by  officials  of  land  department,  are  void. 

7.  Town-site  Patent — Contest   by   Mine   Locator. 

It  is  not  necessary  for  the  owner  of  a  mining  location  to  file  an  adverse  claim  to 
an  application  for  a  town-site  patent. 

8.  Mining  Patent — Contest  by  Town-site  Claimant. 

Claimants  of  a  town  site  which  includes  a  mining  claim  should  file  adverse  claim 
to  application  for  patent  to  the  mining  claim. 

9.  Same — As  Evidence. 

Patent  to  mining  claim  is  evidence  that  the  law  has  been  complied  with  in  all 
proceedings  leading  up  to  its  issuance,  and  fixes  the  mineral  character  of  the  claim. 


CASE    NOTE. 

Patent     to     Mining      Claim      Relates 
Back  to  Date  of  Location. 

Where  a  patent  is  issued  for  a  mining 
claim  it  relates  back  and  confers  title  as 
of  the  date  of  location.  Witherspoon  v. 
Duncan,  71  U.  S.  (4  Wall.)  210  (1866)  ; 
Stark  v.  Starr,  73  U.  S.  (6  Wall.)  402,  18 
L.  Ed.  925  (1869);  Heydenfeldt  t.  The 
Daney  Gold  &  Silver  Min.  Co.,  93  TJ.  S. 
634,  13  Mor.  Min.  Rep.  204  (1876);  St. 
Louis  Smelting  Co.  v.  Kemp,  104  U.  S. 


636,  26  L.  Ed.  875,  11  Mor.  Min.  Rep.  673 
(1881)  ;  Deffenback  v.  Hawke,  115  U.  S. 
392,  6  Sup.  Ct.  95,  29  L.  Ed.  423  (1885)  ; 
Cornelius  v.  Kessel,  128  U.  S.  456,  460, 
.9  Sup.  Ct.  122,  32  L.  Ed.  482  (1888); 
United  States  v.  Iron  &  S.  M.  Co.,  128 
U.  S.  673,  9  Sup.  Ct.  195,  32  L.  Ed.  571 
(1888);  Dahl  v.  Raunheim,  132  TJ.  S. 
260,  10  Sup.  Ct.  74,  33  L.  Ed.  324,  16 
Mor.  Min.  Rep.  214  (1889);  Hastings, 
etc.  Railroad  Co.  v.  Whitney,  132  U.  S. 
357,  10  Sup.  Ct.  112,  33  L.  Ed.  363 
(1884);    Davis   v.   Weibbold,    139   U.    S. 


1887] 


Butte  City  Smoke-House  Lode  Cases. 


521 


Actions  in  ejectment  by  claimant  under  mining  claim  patent  against 
claimants  under  town-site  patents.     Judgment  for  plaintiff.    Affirmed. 

For  appellants — Knowles  &  Forbes. 

For  respondents — W.  W.  Dixon. 

WADE,  C.  J.  The  foregoing  cases  are  actions  in  the  nature  of  eject- 
ment, the  plaintiff  and  respondent  claiming  title  and  the  right  of  pos- 
session under  the  Smoke-house  quartz-lode  mining  claim,  issued  March 
15,  1 88 1,  and  the  defendants  and  appellants  in  each  case  claiming  title 
and  right  of  possession  under  the  patent  of  the  Butte  town  site,  issued 
on  the  twenty-sixth  day  of  September,  1877.  These  causes  arise  under 
the  same  patents,  and  in  every  material  respect  are  similar  to  each  other, 
and  to  the  case  of  Talbott  v.  King,  6  Mont.  76,  S.  C.  9  Pac.  Rep.  434 
(decided  by  this  court  at  the  January  term,  1886,)  and  are  parallel  to  the 
case  of  Silver  Bow  M.  &  M.  Co.  v.  Clark,  5  Mont.  378,  S.  C.  5  Pac.  Rep. 
570  (decided  by  this  court  at  the  January  term,  1885;)  but  as  the  court, 
under  the  act  of  congress  of  July  10,  1886,  has  been  reorganized  since 
these  decisions  were  rendered,  by  increasing  the  number  of  justices,  and 
by  the  appointment  of  two  justices  who  did  not  take  a  part  in  those  de- 
cisions, we  have  considered  the  questions  involved  herein  as  still  open, 
and  as  if  presented  here  for  the  first  time. 

The  theory  of  the  decisions  in  the  case  of  Talbott  v.  King,  and  in  the 
case  of  Silver  Bow  M.  &  M.  Co.  v.  Clark  is  that  a  valid  location  of  a 
quartz-mining  claim  on  the  public  mineral  lands  of  the  United  States 
is  a  grant  from  the  government  to  the  locator  thereof,  and  carries  with 
it  the  right,  by  a  compliance  with  the  law,  of  obtaining  a  full  and  com- 
plete title;  that,  after  such  a  location,  the  lands  included  within  its 
boundaries  are  withdrawn  from  sale  and  pre-emption ;  that  the  patent 
relates  back  to  the  location,  and  is  the  consummation  of  the  grant,  which 
by  the  location  had  its  inception;  that  a  valid  location,  kept  alive  by 


507,  11  Sup.  Ct.  628,  35  L.  Ed.  238 
(1890)  ;  Benson  Mining  &  S.  Co.  v.  Alta 
Min.  &  S.  Co.,  145  U.  S.  428,  12  Sup. 
Ct.  877,  36  L.  Ed.  762,  17  Mor.  Min. 
iRep.  488  (1892);  Bardon  v.  Northern 
Pac.  R.  Co.,  145  U.  S.  535,  12  Sup.  Ct. 
856,  36  L.  Ed.  806  (1891)  ;  Calhoun  Gold 
Min.  Co.  v.  Ajax  Gold  Min.  Co.,  182  U. 
S.  499,  21  Sup.  Ct.  885,  45  L.  Ed.  1200, 
21  Mor.  Min.  Eep.  381  (1901);  Eureka 
Consol.  Min.  Co.  v.  Richmond  Min.  Co., 
4  Sawy.  303,  Fed.  Cas.  No.  4548,  9  Mor. 


Min.  Rep.  578  (1877);  Pacific  Coast 
Min.  &  M.  Co.  v.  Spargo,  16  Fed.  348, 
16  Mor.  Min.  Rep.  75  (1883)  ;  Bogan  v. 
Edinburgh  American  Land  Mortgage  Co., 
63  Fed.  192,  11  C.  C.  A.  128  (1894); 
Montana  Central  R.  Co.  v.  Migeon,  68 
Fed.  811  (1895);  Bunker  Hill  M.  & 
Concentrating  Co.  v.  Empire  State  Idaho 
Min.  &  Dev.  Co.,  108  Fed.  189  (1900), 
affirmed  109  Fed.  538,  48  C.  C.  A.  665, 
21  Mor.  Min.  Rep.  317  (1901)  ;  Teller  v. 
United  States,  113  Fed.  273,  51  C.  C.  A. 


522 


Water  and  Mineral  Cases. 


[Montana 


representation  and  a  compliance  with  law,  gives  to  the  locator,  or  his 
grantees,  the  right  to  the  exclusive  possession  and  enjoyment  of  the 
surface  of  the  claim  located;  that  the  office  of  an  adverse  claim  is  to 
have  determined,  by  a  court  of  competent  jurisdiction,  the  right  to  such 
possession;  that,  if  an  adverse  claim  is  not  made  at  the  time  and  in  the 
manner  prescribed  by  law,  the  same  is  thereafter  barred;  that  the  issu- 
ance of  a  patent  to  a  quartz-lode  mining  claim  is  conclusive  upon  the 
court  in  an  action  at  law;  that  the  discovery,  location,  marking,  and 
bounding,  and  all  proceedings  up  to  the  issuance  of  the  patents,  were 
regular  and  as  required  by  law ;  that  it  is  impossible,  under  a  patent  to  a 
town  site,  to  acquire  any  interest  in  any  mine  of  gold,  silver,  cinnabar, 
or  copper,  or  in  any  valid  mining  claim  or  possession,  held  under  existing 
laws;  that,  as  to  any  such  mine  or  mining  claim  or  possession,  a  patent 
to  a  town  site  did  not  take  hold  of,  operate  upon,  or  in  any  manner 
affect  it ;  that  an  exception  in  a  mining  claim  patent,  excluding  therefrom 
all  lots,  blocks,  streets,  alleys,  houses,  and  municipal  improvements  on 
the  surface  of  the  claim,  is  unauthorized  and  void ;  that  an  exception  in  a 
town-site  patent,  excluding  from  its  operation  all  mines,  mining  claims, 
and  possessions  held  under  existing  laws,  is  an  exception  required  by 
the  law,  and  is  made  by  the  law  itself,  and  is  conclusive  upon  the  ques- 
tion that  the  government  did  not,  and  did  not  intend  by  such  town-site 
patent  to,  convey  any  valid  mine,  mining  claim,  or  possession  held  under 
existing  laws. 

We  believe  that  the  theory  upon  which  the  cases  of  Talbott  v.  King 
and  Silver  Bow  M.  &  M.  Co.  v.  Clark  were  decided,  is  correct,  and  the 
decisions  in  those  cases  are  hereby  approved  and  confirmed. 

The  theory  of  appellants  seems  to  be  that  the  town-site  patent  conveys 
all  the  grounds  included  within  the  boundaries  of  the  town  site,  regard- 
less of  prior  conveyances  to  other  parties;  that,  in  the  issuance  of  such 
a  patent,  the  officers  of  the  government  decided  that  the  grounds  within 
the  boundaries  of  the  town  site  were  not  valuable  for  mineral  purposes ; 


236  (1901)  ;  Fetter  v.  United  States,  117 
Fed.  577  (1902);  Neilson  v.  Champagne 
Min.  &  M.  Co.,  119  Fed.  123,  22  Mor. 
Min.  Rep.  438  (1902);  Last  Chance 
Min.  Co.  v.  Bunker  Hill  S.  &  C.  Co.,  131 
Fed.  579  (1904);  Tombstone  Town-site 
Case,  2  Ariz.  272,  15  Pac.  26  (1887); 
Alta  M.  &  S.  Co.  v.  Benson,  etc.  Co.,  2 
Ariz.  371,  16  Pac.  565  (1888)  ;  Yount  v. 
Howell,  14  Cal.  465  (1859);  Ely  v. 
Frisbie,  17  Cal.  250  (1861);  Galbraith 
v.  Shasta  Iron  Co.,  143  Cal.  94,  76  Pac. 


901  (1904);  Silver  Bow  Min.  Co.  v. 
Clark,  5  Mont.  378,  5  Pac.  570  (1885); 
Talbot  v.  King,  6  Mont.  76,  9  Pac.  434 
(1886);  Butte  City  Smoke-House  Lode 
Cases,  principal  case;  Chamber  v.  Jones, 
17  Mont.  158,  42  Pac.  758  (1895); 
Hickey  v.  Anaconda  Copper  Min.  Co., 
33  Mont.  46,  81  Pac.  806  (1905)  ;  Cour- 
chaine  v.  Bullion  Mining  Co.,  4  Nev.  369, 
12  Mor.  Min.  Rep.  235  (1868)  ;  Deno  v. 
Griffin,  20  Nev.  249,  20  Pac.  308  (1889)  ; 
Sharkey  v.  Candiani,  48  Or.  112,  85  Pac. 


1887] 


Butte  City  Smoke-House  Lode  Cases. 


523 


that  the  words  in  the  patent  excluding  from  its  operation  all  mines,  min- 
ing claims,  and  possessions  held  under  existing  laws,  was  not  an  excep- 
tion that  excluded  any  lands  from  the  Butte  town  site ;  that  the  issuance 
of  the  Smoke-house  patent  did  not  decide  that  the  premises  embraced 
therein  was  a  valid  mining  claim  and  possession  at  the  date  of  the  issu- 
ance of  the  town-site  patent ;  that,  if  the  failure  to  contest  the  applica- 
tion for  the  Smoke-house  patent  waived  all  rights  to  such  mining  claim, 
then  the  failure  of  the  Smoke-house  claimants  to  contest  the  town-site 
application  was  a  waiver  of  any  rights  to  the  grounds  embraced  in  the 
town-site  patent;  that  the  grant  derived  from  the  location  of  a  mining 
claim  is  an  independent  grant  from  that  derived  from  a  patent  to  the 
same  ground,  and  that  the  location  of  a  mining  claim  is  not  the  first 
step  towards  the  obtaining  of  a  patent  for  such  claim ;  that  the  patent 
issued  for  the  Smoke-house  mining  claim  was  an  adjudication  by  the 
land  department  that  all  lots,  blocks,  streets,  alleys,  etc.,  should  be  ex- 
cepted from  such  patent;  that  the  grantees  accepted  the  patent  to  the 
Smoke-house  mining  claim  with  those  exceptions  in  the  same,  and  are 
bound  thereby;  that  the  applicants  were  not  barred  from  proving  their 
alleged  estoppel;  and  that,  as  both  these  parties  claim  by  patents,  the 
court  should  have  gone  back  of  the  patents,  and  determined  from  the 
proof  who  had  the  better  right. 

We  do  not  think  the  acts  of  congress  in  relation  to  acquiring  title  to 
mining  claims  and  town  sites  warrant  or  uphold  this  theory  of  appel- 
lants. Why  should  the  court  have  gone  behind  the  patents,  and  ascer- 
tained from  the  proofs  which  of  these  parties  had  the  better  right,  when 
it  was  not  possible  for  either  to  have  acquired  any  right  or  title  to  the 
property  of  the  other  by  virtue  of  his  patent?  Their  patents  do  not  cover 
or  touch  the  same  property.  By  the  express  terms  of  the  law,  and  by 
the  express  terms  of  the  town-site  patent,  all  valid  mines,  mining  claims, 
and  possessions  held  under  existing  laws  were  excluded  from  the  opera- 


219,  1  L.  R.  A.  (N.  S.)  791  (1906); 
Kahn  v.  The  Mining  Co.,  2  Utah  174, 
11  Mor.  Min.  Rep.  645   (1877-1880). 

While  under  issuance  of  patent,  title 
relates  back  to  the  time  of  location,  the 
patent  does  not  conclusively  fix  the  date 
of  the  location,  as  the  date  of  location  is 
not  one  of  the  essential  facts  neccessary 
to  support  the  judgment  of  the  land  de- 
partment in  issuing  a  patent.  Bunker 
Hill  &  S.  Min.  &  Consol.  Co.  v.  Empire 
State  Idaho  Min.  &  D.  Co.,  108  Fed.  189 
(1900),    affirmed    109    Fed.    538,    48    C. 


C.  A.  665,  21  Mor.  Min.  Rep.  317  (1901). 

Upon  payment  for  the  land  and  receipt 
entitling  the  purchaser  to  a  patent,  the 
purchaser  becomes  the  equitable  owner 
of  the  land  in  fee,  with  the  absolute,  un- 
restricted right  to  use  and  exercise  do- 
minion over  it,  and  the  government  holds 
the  mere  naked  title  until  the  patent 
can  issue.  Teller  v.  United  States,  117 
Fed.  581   (1902). 

The  issuance  by  the  government  of  its 
patent  for  a  mining  claim  is  conclusive 
evidence   of   the   sufficiency   of   all   steps 


524 


Watek  and  Mineeal  Cases. 


[Montana 


tion  of  that  patent.  At  the  time  of  the  issuance  of  the  town-site  patent  in 
1877,  tne  Smoke-house  location  had,  for  more  than  two  years,  been  a 
valid  mining  claim  and  possession.  This  is  evidenced  by  the  subsequent 
issuance  of  a  patent  for  such  mining  claim  in  pursuance  of  a  location  in 
1875.  There  are  no  authorities  that  dispute  the  doctrine  that  the  patent 
relates  back  to  the  location,  and  protects  it.  The  location  is  the  inception 
of  the  grant,  of  which  the  patent  is  the  consummation.  The  government 
does  not  go  through  the  performance  of  making  two  grants  of  one  mining 
claim  to  the  same  person,  or  to  his  successors  in  interest. 

The  Smoke-house  location,  being  a  valid  mining  claim  at  the  time,  was 
expressly  excepted  from  the  operation  of  the  town-site  patent,  and  it  was 
not  possible  by  such  a  patent  to  have  obtained  any  interest  therein  or  title 
thereto.  There  is  no  conflict  between  a  town-site  patent  and  a  mining- 
claim  patent,  and  can  be  none.  They  evidence  separate  and  distinct 
grants,  and  cannot  conflict  with  one  another.  The  one  conveys  a  mining 
claim,  an  independent  grant,  and  the  other  conveys  ground  for  a  town 
site,  from,  which,  by  the  law,  all  valid  mining  claims  and  possessions  are 
excluded.  Many  valuable  mines,  mining  claims,  and  possessions  are  held 
and  owned  by  perfect  titles,  over  which  town  sites  have  been  extended, 
and  there  can  be  no  conflict  between  them.  The  two  titles  take  hold  of 
and  affect  property  that  is  entirely  separate  and  distinct. 

The  officers  of  the  land  department  had  no  authority  to  convey  a  mining 
claim  by  the  issuance  of  a  town-site  patent,  and  no  authority  to  convey  a 
town  site  by  the  issuance  of  a  mining-claim  patent.  At  the  time  of  issuing 
the  town-site  patent,  they  had  no  authority  to  declare  that  the  Smoke- 
house location  was  not  a  valid  mining  claim  and  possession ;  and,  having 
no  such  authority,  they  excluded  from  the  operation  of  the  town-site 
patent  all  mines,  mining  claims,  and  possessions,  as  the  law  required. 

But  it  is  said  that  the  patent  issued  for  the  Smoke-house  claim  was  an 
adjudication  by  the  land  department  that  all  lots,  blocks,  streets,  and 
alleys  should  be  excepted  from  such  patent.     If  this  be  true,  then  the 


necessary  to  establish  its  validity.  Last 
Chance  Min.  Co.  v.  Bunker  Hill  &  S. 
Min.  &  C.  Co.,  131  Fed.  579  (1904). 

A  patent  duly  signed,  countersigned, 
and  sealed,  not  merely  operates  to  pass 
the  title,  but  is  in  the  nature  of  an  offi- 
cial declaration  that  all  the  requirements 
preliminary  to  its  issue  have  been  com- 
plied with.  The  presumptions  attending 
it  are  not  open  to  rebuttal.  Galbraith  v. 
Shasta  Iron  Co.,  143  Cal.  94,  76  Pac. 
■901   (1904). 


There  are  no  authorities  that  dispute 
the  doctrine  that  the  patent  relates  back 
to  the  location,  and  protects  it.  The 
location  is  the  inception  of  the  grant,  of 
which  the  patent  is  the  consummation. 
Butte  City  Smoke  House  Lode  Cases, 
principal  case. 

All  matters  pertaining  to  the  issuance 
of  patent  for  a  mining  claim,  the  dis- 
covery and  location,  the  marking  and 
bounding  so  that  the  claim  may  be  identi- 
fied,   and    its    lines    readily    traced,    the 


1887] 


Butte  City  Smoke-House  Lode  Cases. 


525 


land  department  can  make  adjudications  without  authority  of  law.  The 
Smoke-house  location  carried  with  it  the  right  to  the  exclusive  possession 
and  enjoyment  of  all  the  surface  ground  included  within  the  boundaries 
of  the  location.  This  right  is  given  by  an  act  of  congress ;  it  is  the  very 
essence  and  substance  of  the  title  to  quartz-mining  claims ;  and,  having  a 
valid  location,  this  title  and  grant  cannot  lawfully  be  taken  away  or  de- 
feated. There  is  no  law  authorizing  the  land-officers  to  exclude  from  a 
mining-claim  patent  the  right  to  such  surface  ground,  and  consequently 
any  attempt  to  do  so  is  necessarily  void.  The  patentee  of  such  a  patent 
is  entitled  to  what  the  law  gives  him,  and  his  rights  cannot  be  abridged 
or  taken  from  him  by  the  unauthorized  or  unlawful  acts  of  any  one. 
There  is  no  force  in  the  proposition  that  the  land  department  adjudicated 
the  surface  ground  of  the  Smoke-house  patent,  or  that  the  grantees  of 
such  patent  are  bound  by  an  unlawful  exception.  Their  rights  are  de- 
fined by  the  law,  and  in  asserting  them  they  do  not  encroach  upon  any 
rights  acquired  by  the  town-site  patent. 

And  now,  why  should  the  owners  of  the  Smoke-house  location  have 
filed  an  adverse  claim  to  the  application  for  the  town-site  patent?  They 
knew  that  the  town-site  patent,,  when  issued,  would  exclude  from  its 
operation  all  valid  mines,  mining  claims,  and  possessions,  and  therefore 
they  had  no  adverse  claim.  They  could  not  object  to  the  issuance  of  the 
town-site  patent,  for  it  could  not  interfere  with  or  in  any  manner  affect 
the  Smoke-house  location.  Suppose  they  had  filed  an  adverse  claim, 
they  would  have  been  informed  that  they  were  meddling  with  what  did 
not  concern  them.  They  would  have  been  told  that  the  town-site  patent, 
when  issued,  could  not  touch  the  Smoke-house  location. 

But  it  is  contended  that,  if  it  was  not  necessary  for  the  Smoke-house 
owners  to  make  an  adverse  claim  to  the  town-site  application,  therefore 
the  town-site  claimants  were  in  like  manner  relieved  from  filing  their 
adverse  claims  to  the  Smoke-house  application  for  a  patent.  It  is  also 
said  that  the  town-site  claimants  were  the  owners  by  the  patent  at  the 
time  the  Smoke-house  application  for  a  patent  was  made,  and,  having 
a  patent,   they  were   relieved   from   making  any   adverse   claim  to  the 


notice,  and  the  work  and  labor  to  be  per- 
formed, are  all  matters  that  come  before 
the  land  department,  and  are  conclusively 
adjudicated  therein.  That  department 
supervises  the  issuance  of  the  patent.  It 
is  a  special  tribunal  created  for  that  pur- 
pose and  within  the  scope  of  its  jurisdic- 
tion its  adjudications  are  final  and  con- 
clusive. Before  a  mining-claim  patent 
can  issue,  it  must  be  established  in  the 


land  office  by  competent  evidence  that 
there  has  been  a  discovery  within  the 
boundaries  of  the  claim,  and  a  notice 
and  location  according  to  the  law,  that 
the  necessary  work  has  been  done,  and 
that  all  preliminary  and  precedent  acts 
have  been  performed  which  authorize  and 
justify  the  issuance  of  the  patent,  and 
the  patent  itself  is  evidence  of  the  reg- 
ularity   of    all    these    acts.      Chambers 


526 


Water  and  Mineral  Cases. 


[Montana 


Smoke-house  application.  It  is  also  argued  that  adverse  claims  to  ap- 
plications for  patents  to  mining  claims  can  only  be  made  by  those  who 
claim  some  interest  in  the  property  as  a  mining  claim,  and  therefore  that 
those  who  claimed  the  surface  ground  of  the  Smoke-house  location,  for 
the  purpose  of  lots,  blocks,  streets,  and  alleys,  were  relieved  from  the 
necessity  of  making  an  adverse  claim  to  the  Smoke-house  application. 
It  does  not  follow  that  because  the  Smoke-house  owners  were  not  re- 
quired to  make  an  adverse  claim  to  the  town-site  application  for  a  patent, 
therefore  that  the  town-site  owners  were  relieved  from  making  adverse 
claim  to  the  Smoke-house  application.  The  town-site  application  was  not 
adverse  to  the  Smoke-house  location;  but  the  Smoke-house  application 
for  a  patent,  which  was  the  assertion  of  a  right  to  the  exclusive  possession 
and  enjoyment  of  the  surface  ground  included  within  the  boundaries  of 
the  location,  called  upon  every  one  claiming  any  interest  in  the  surface 
ground  to  set  up  their  adverse  claim.  And  the  mere  fact  that  the  town- 
site  claimants  held  under  a  patent  from  which  all  valid  mining  claims  and 
possessions  are  excluded,  did  not  relieve  them  from  setting  up  their 
adverse  claim. 

Claimants  under  a  town-site  patent  are  not  relieved  from  making  an 
adverse  claim,  if  they  have  one,  to  an  application  for  a  patent  to  a 
mining  claim  within  the  boundaries  of  the  town  site.  In  such  a  case  both 
parties  would  claim  the  exclusive  right  to  the  possession  and  enjoyment 
of  the  ground, — the  one  by  his  discovery  and  location  of  a  mining  claim, 
the  other  by  virtue  of  his  deed  from  the  probate  judge.  If  there  had  been 
no  discovery,  or  no  location  according  to  law,  an  adverse  claim  by  the 
lot  owner  would  have  shown  this  condition,  and  defeated  the  application 
for  a  patent;  and  when  this  application  was  made,  was  the  time  for  the 
town-site  claimant  to  make  known  his  adverse  claim;  and,  if,  by  his 
laches  or  neglect,  he  permitted  the  statutory  time  to  pass,  he  thereby 
lost  his  right. 

The  opinion  of  Mr.  Justice  Field  in  the  case  of  Deffeback  v.  Hawke, 
115  U.  S.  392,  S.  C.  6  Sup.  Ct.  Rep.  95,  rendered  in  the  Supreme  Court 
of  the  United  States  at  the  October  term,  1885,  is  instructive,  and  covers 


v.  Jones,  17  Mont.  158,  42  Pac.  758 
(1895). 

The  patent  is  a  mere  perfection  of  the 
right  originated  by  the  location  and  to 
which  it  takes  effect  by  relation  and, 
therefore,  the  location  is  not  affected  by 
a  subsequent  location  and  issuance  of 
patent  for  a  town  site.  Chambers  v. 
Jones,  17  Mont.  158,  42  Pac.  758   (1895). 

The    patent   is   not   conclusive   of   the 


fact  that  a  declaratory  statement  in  due 
form  of  law  was  filed  for  record.  When 
a  patentee  seeks  to  show  that  his  title 
is  older  than  the  evidence  of  his  title 
indicates, — when  he  seeks  to  show  that, 
notwithstanding  the  date  of  his  patent  or 
receiver's  final  receipt,  his  title  in  fact 
relates  back  to  the  date  of  his  location, — 
he  must  show  affirmatively  a  location 
valid  under  the  laws  of  the  state  where 


1887] 


Butte  City  Smoke-House  Lode  Cases. 


527 


many  of  the  points  and  propositions  in  the  cases  before  us.  In  that  case 
the  plaintiff  relied  upon  a  patent  of  the  United  States  for  the  land  in 
controversy,  issued  under  the  laws  for  the  sale  of  mineral  lands.  The 
defendant  set  up  as  ground  for  equitable  relief,  against  the  enforcement 
of  the  rights  of  the  plaintiff,  under  the  patent,  that  his  grantor  occupied 
the  land  as  a  lot  in  the  town  site  of  Deadwood,  and  made  improvements 
thereon,  before  the  plaintiff  claimed  it  as  mining  ground,  or  took  proceed- 
ings to  procure  a  title.  The  defendant  therefore  denied  the  right  of  the 
plaintiff  to  acquire  the  premises  as  a  mining  claim  on  the  town  site,  and 
he  also  contended  that,  if  the  plaintiff  had  that  right,  the  patent  issued 
to  him  should  have  contained  reservations  excluding  from  its  operation 
the  buildings  and  improvements  of  the  defendant,  and  whatever  was 
necessary  for  their  use  and  enjoyment. 

In  deciding  the  case  Justice  Field  said:  "In  the  present  case  there 
is  no  dispute  as  to  the  mineral  character  of  the  land  claimed  by  the 
plaintiff.  It  is  upon  the  alleged  prior  occupation  of  it  for  trade  and 
business,  the  same  being  within  the  settlement  or  town  site  of  Deadwood, 
that  the  defendant  relies  as  giving  him  a  better  right  to  the  property. 
But,  the  title  to  the  land  being  in  the  United  States,  its  occupation  for 
trade  or  business  did  not  and  could  not  initiate  any  right  to  it,  the  same 
being  mineral  land,  nor  delay  proceedings  for  the  acquisition  of  the  title 
under  the  laws  providing  for  the  sale  of  lands  of  that  character.  And 
those  proceedings  had  gone  so  far  as  to  vest  in  the  plaintiff  a  right  to 
the  title  before  any  steps  were  taken  by  the  probate  judge  of  the  county 
to  enter  the  town  site  at  the  local  land  office.  The  complaint  alleges, 
and  the  answer  admits,  that  on  the  twentieth  day  of  November,  1877,  the 
plaintiff  applied  to  the  United  States  land-office  at  Deadwood  to  enter 
the  land  as  a  placer  mining  claim,  and  that  on  the  thirty-first  day  of 
January,  1878,  he  did  enter  it  as  such,  by  paying  the  government  price 
therefor.  No  adverse  claim  was  ever  filed  with  the  register  and  receiver 
of  the  local  land  office,  and  the  entry  was  never  canceled  nor  disap- 
proved by  the  officers  of  the  land  department  at  Washington." 

Here  is  a  recognition  of  the  doctrine  that  lotowners  in  a  town  site 


the  claim  is  situated.  Hickey  v.  Ana- 
conda Copper  Min.  Co.,  33  Mont.  46,  81 
Pac.  806   (1905). 

Under  the  Act  of  Congress  of  1872 
■where  a  party  applying  for  a  patent  to 
mining  ground  gives  the  proper  notice  as 
therein  required,  any  other  claimants 
can  object  to  the  issuance  of  the  patent, 
either  on  account  of  its  extent  or  form 
or    because    of    asserting  prior  location. 


They  must  come  forward  with  their  ob- 
jections and  present  them  or  they  will 
be  precluded  from  objecting  to  the  issu- 
ance of  the  patent.  Therefore,  the  doc- 
trine of  relation  applies  to  patents  to 
mining  claims  so  as  to  cut  off  interven- 
ing claimants  if  any  there  should  be, 
such  as  might  arise  from  a  subsequent 
location.  Deno  v.  Griffin,  20  Nev.  249, 
20  Pac.  308   (1889). 


528 


Water  and  Mineral  Cases. 


[Montana 


even  though  the  town-site  entry  had  not  been  perfected,  should  have  filed 
their  adverse  claims,  if  any  they  had,  to  the  application  for  a  patent  to 
mining  ground,  and  that  their  failure  so  to  do  barred  their  right. 

Justice  Field  continues:  "The  right  of  the  government,  therefore, 
passed  to  him ;  and,  though  its  deed,  that  is,  its  patent,  was  not  issued  to 
him  until  January  31,  1882,  the  certificate  of  purchase,  which  was  given 
to  him  upon  the  entry,  was  so  far  as  the  acquisition  of  title  by  any  other 
party  was  concerned,  equivalent  to  a  patent.  It  was  not  until  the  twenty- 
eighth  of  July  following  that  the  probate  judge  entered  the  town  site. 
The  land  had  then  ceased  to  be  the  subject  of  sale  by  the  government. 
It  was  no  longer  its  property.  It  held  the  legal  title  only  in  trust  for  the 
holder  of  the  certificate.  Witherspoon  v.  Duncan,  4  Wall.  210,  218. 
When  the  patent  was  subsequently  issued,  it  related  back  to  the  incep- 
tion of  the  right  of  the  patentee." 

And  so  we  say  that,  by  the  location  of  the  Smoke-house  claim,  the 
ground  included  within  its  boundaries  ceased  to  be  the  subject  of  sale 
by  the  government.  It  was  no  longer  the  property  of  the  government. 
It  held  the  legal  title  in  trust  for  the  locator  of  the  claim,  or  his  grantees ; 
and;  when  the  patent  was  subsequently  issued,  it  related  back  to  the 
inception  of  the  right  of  the  patentee,  which  was  the  location  of  the 
claim. 

Speaking  of  reservations  and  exceptions  of  municipal  improvements  in 
a  patent  to  a  mining  claim,  Justice  Field  fully  justifies  all  we  have  said 
on  that  subject.  His  language  is  as  follows:  "The  position  that  the 
patent  to  the  plaintiff  should  have  contained  a  reservation,  excluding 
from  its  operation  all  buildings  and  improvements  not  belonging  to  him, 
and  all  rights  necessary  or  proper  to  the  possession  and  enjoyment  of  the 
same,  has  no  support  in  any  legislation  of  congress.  The  land-officers, 
who  are  merely  agents  of  the  law,  had  no  authority  to  insert  in  the  patent 
any  other  terms  than  those  of  conveyance,  with  recitals  showing  a  com- 
pliance with  the  law,  and  the  conditions  which  it  prescribed.  The  patent 
of  a  placer  mining  claim  carries  with  it  the  title  to  the  surface  included 


A  patent  to  a  mining  claim  is  con- 
clusive that  all  requirements  necessary 
to  its  issuance  have  been  fulfilled. 
Sharkey  v.  Candiani,  48  Or.  112,  85 
Pac.  219,  7  L.  R.  A.  (N.  S.)  791   (1906). 

The  rights  acquired  under  a  patent  to 
a  mining  claim  relate  back  to  the  date 
of  location,  and  are  the  final  consumma- 
tion of  that  act.     If  officers  of  the  land 


department  insert  in  the  patent  unau- 
thorized restrictions  or  inclusions,  these 
cannot  affect  the  right  of  the  patentee. 
Silver  Bow  Min.  &  Mill.  Co.  v.  Clarke, 
5  Mont.  378,  5  Pac.  570   (1885). 

Exception  in  patent  which  is  not  au- 
thorized by  law  has  no  effect  thereon,  as 
the  patent  relates  back  to  the  date  of  the 
location.     Talbot  v.   King,   6   Mont.    76. 


1887]  Butte  City  Smoke-House  Lode  Cases.  529 

within  the  lines  of  the  mining  location,  as  well  as  to  the  land  beneath 
the  surface." 

Speaking  of  the  possibility  of  acquiring  title  to  a  mineral  claim  by  vir- 
tue of  a  town-site  patent,  Justice  Field  continues :  "While  we  hold  that  a 
title  to  known  valuable  mineral  land  cannot  be  acquired  under  the  town- 
site  laws,  and  therefore  could  not  be  acquired  to  the  land  in  controversy 
under  the  entry  of  the  town  site  of  Deadwood  by  the  probate  judge  of 
the  county  in  which  the  town  is  situated,  we  do  not  mean  to  be  under- 
stood as  expressing  any  opinion  against  the  validity  of  the  entry,  so  far 
as  it  affected  property  other  than  mineral  lands,  if  there  were  any  such 
at  the  time  of  the  entry." 

That  is  equivalent  to  saying,  what  we  have  already  said  in  this  de- 
cision, that  the  town-site  patent  took  hold  of  the  non-mineral  lands  in- 
cluded within  its  limits,  but  did  not  touch  or  in  any  manner  affect  the 
mining  claims  therein ;  and  hence  that  the  patent  to  the  Butte  town-site 
did  not  affect  the  Smoke-house  location;  and,  further,  that  there  is  not 
and  cannot  be  any  conflict  between  a  town-site  and  a  mining  claim 
patent. 

The  decision  of  Justice  Field  continues :  "The  act  of  congress  relating 
to  town  sites  recognizes  the  possession  of  mining  claims  within  their 
limits;  and  in  Steel  v.  Smelting  Co.,  106  U.  S.  447  (S.  C.  1  Sup.  Ct. 
Rep.  389)  we  said  that  'lands  embraced  within  a  town  site  on  the  public 
domain,  when  unoccupied,  is  not  exempt  from  location  and  sale  for  min- 
ing purposes ;  its  exemption  is  only  from  settlement  and  sale  under  the 
pre-emption  laws  of  the  United  States.  Some  of  the  most  valuable  mines 
in  the  country  are  within  the  limits  of  incorporated  cities,  which  have 
grown  up  on  what  was,  at  its  first  settlement,  part  of  the  public  domain  ; 
and  many  of  such  mines  were  located  and  patented  after  a  regular  mu- 
nicipal government  had  been  established.'  It  would  seem,  therefore,  that 
the  entry  of  a  town  site,  even  though  within  its  limits  mineral  lands  are 
found,  would  be  as  important  to  the  occupants  of  other  lands  as  if  no 
mineral  lands  existed.  Nor  do  we  see  any  injury  resulting  therefrom, 
nor  any  departure  from  the  policy  of  the  government;  the  entry  and  the 
patent  being  inoperative  as  to  all  lands  known  at  the  time  to  be  valuable 


9  Pac.  434    (1886). 

As  to  the  rights  to  a  mining  claim 
acquired  by  possession,  see  note  to 
Dwinnell  v.  Dyer,    p. — ,  vol.  3,  this  series. 

As  to  petroleum  and  other  mineral 
oils  and  natural  gas  being  minerals,  and 
subject  to  location  under  the  mining 
laws,  see  note  to  Whiting  v.  Straup,  p. 

,  vol.  2,  this  series. 

W.  &  M.— 34 


As  to  good  faith  required  of  mining 
partners  in  their  dealings  with  each 
other,  see  note  to  Walker  v.  Bruce,  p. 
,  vol.   3,   this   series. 

As  to  mining  partnership  not  being 
dissolved  by  sale  of  interest  by,  or  death 
of  one  copartner,  see  note  to  Loy  v. 
-Alston,  p. ,  vol.  3,  this  series. 


530  Water  and  Mineral  Cases.  [Montana 

for  their  minerals,  or  discovered  to  be  such  before  their  occupation  or 
improvement  for  residences  or  business  under  the  town-site  title." 

In  the  case  of  Sparks  v.  Pierce,  115  U.  S.  412,  S.  C.  6  Sup.  Ct.  Rep. 
102,  it  is  said  that  a  patent  to  a  mineral  claim  is  itself  evidence  that  all 
the  requirements  of  the  law  for  its  sale  have  been  complied  with. 

And  so  the  Smoke-house  patent  was  itself  evidence  that,  in  the  dis- 
covery, the  location  of  the  claim,  and  in  all  proceedings  up  to  the  issu- 
ance of  the  patent,  the  law  had  been  complied  with.  The  Smoke-house 
location  was  known  to  exist  before  the  town-site  entry.  This  patent 
related  back  to  the  location  in  1875,  and  fixes  the  mineral  character  of 
the  claim  at  that  time,  and  at  all  subsequent  times,  up  to  the  date  of  the 
issuance  of  the  patent  in  1881.  It  was,  therefore,  a  valid  mining  claim 
and  possession  in  1877,  when  the  town-site  patent  was  issued,  and  nec- 
essarily excepted  therefrom. 

The  judgment,  in  each  of  the  foregoing  cases  is  hereby  affirmed  with 
costs. 


1910] 


Aveky  v.  Johnson. 


531 


AVERY  v.  JOHNSON. 

{Supreme  Court  of  Washington,  July  13,  1910.] 


59  Wash.  332,  109  Pac.  1028. 

1.      Waters       and       Water     Courses— Indian      Reservations— Appropriation 
Cannot   Antedate   Opening. 

No  ri-ht  of  appropriation  of  waters  on  Indian  reservation  could  antedate  opening 
of   reserfation   to   settlement,   and   no   such   right   could   antedate   actual   bona   fide 
sett'ement  u?on   contiguous   lands   capable   of  being  irrigated  by  the  waters   of   a 
stream.* 
2       Same Appropriation — Qualifications  of   Appropriator. 

"if  the  party  seeks  to  claim  water  for  irrigating  agricultural  land  by  appropria- 
tion he  must  own  the  land  sought  to  be  irrigated  or  be  an  actual  bona  fide  settler 
having  a  possessory  interest. 

3.  Same — Not    by   Squatter   or  Speculator. 

The  right  of  a  squatter  or  speculator  to  claim  the  right  of  appropriation  has  not 
been  recognized  by  custom  nor  sanctioned  by  statute. 

4.  Same — Mere   Squatter    Has   no    Rights. 

A  mere  squatter  can  claim  no  right  either  as  an  appropriator  or  as  a  riparian 
proprietor. 


CASE    NOTE.  , 

Who  May  Make  an  Appropriation. 

I.  Owner  oe  Possessor  of  Prop- 

erty, 531. 

A.  In  General,  531. 

B.  Effect  of  Local  Laws, 

532. 
C    Equitable  Title  Suffi- 
cient, 532. 

D.  Leasehold   Estate  Suf- 

ficient, 532. 

E.  Riparian       Ownership 

Not  Necessary,  532. 

F.  Vendee      under      Con- 

tract   to    Purchase, 
533. 

II.  Settlers  on  Public  Lands, 

533. 

III.  Squatters  on  Public  Lands* 

533. 

IV.  Trespassers,  534. 
V.     Miners,  534. 

VI.    Filling  Fish  Ponds,  535. 
VII.    Power  for  Electricity,  535. 


VIII.     Speculators,  535. 
IX.     Corporations,  535. 
X.     Aliens,  536. 

XL     Successor  in  Interest,   536. 
XII.     Personal   Use   Not   Neces- 
sary, 536. 

I.      Owner  or   Possessor  of    Property. 
A.      In   General. 

If  a  party  seeks  to  claim  water  for 
irrigating  agricultural  land  by  ap- 
propriation, he  must  own  the  land 
sought  to  be  irrigated  or  be  an  actual, 
bona  fide  settler  having  a  possessory 
interest.  Avery  v.  Johnson,  principal 
case. 

The  ownership  or  possession  of  land 
capable  of  being  made  productive  by 
irrigation  is  essential  to  an  appropria- 
tion under  the  Arizona  law.  Slosser 
v.  Salt  River  Valley  Canal  Co.,  7  Ariz. 
376,  65  Pac.  332    (1901). 


*As  to  right  to  construct  or  maintain  ditch  or  canal  on  unsurveyed  government 
land  and  government  reservations,  see  note  to   United  States  v.  Lee,  ante,  p.  479. 


532 


Water  and  Mineral  Cases. 


[Washington 


5.      Same — Irrigation — Appropriates       Entitled       Exclusively     to      Quantity 
Appropriated. 

It  is  an  elementary  law  of  appropriation  of  water  for  irrigation  that  the  first 
appropriator  is  entitled  to  the  quantity  of  water  appropriated  by  him  to  the  ex- 
clusion of  subsequent  claimants  by  appropriation  or   riparian  ownership. 

Action  to  restrain  diversion  of  water  for  purposes  of  irrigation  and 
fix  respective  rights.  Judgment  for  defendant.  Reversed  and  remanded, 
with  directions  to  enter  decree  fixing  amount  of  water  to  which  plaintiffs 
are  entitled,  etc. 


For  appellant — Alvin  W.  Barry. 
For  appellee — E.  Fitzgerald. 

CHADWICK,  J.  The  south  half  of  the  Colville  Indian  Reservation 
was  opened  to  settlement  on  October  10,  1900.  At  that  time  one  Georgie 
A.  Warren  made  homestead  entry  of  a  certain  160-acre  tract  of  land 
riparian  to  Antoine  Creek,  a  small  stream  flowing  from  the  northeast 
into  the  Okanogan  River.  At  about  the  same  time,  C.  C.  Kloppenstein 
made  homestead  entry  of  a  160-acre  tract  lying  east  of  the  Warren 
entry.  The  lands  in  their  natural  state  were  semi  arid  and  incapable  of 
producing  crops  without  irrigation,  but  with  irrigation  the  lands  were 


An  appropriator  must  make  actual 
beneficial  use  of  the  water  on  land  which 
he  owns  or  possesses.  Gould  v.  Maricopa 
Canal  Co.,  8  Ariz.  429,  76  Pac.  1125 
(1904);  Tucker  v.  Jones,  8  Mont.  225, 
19  Pac.  571   (18S8). 

One  may  not  acquire  a  water  right 
upon  the  lands  of  another  without  ac- 
quiring an  easement  in  such  land. 
Smith  v.  Denniff,  24  Mont.  22,  60  Pac. 
398,  81  Am.  St.  Rep.  408,  50  L.  R.  A. 
741  (1900);  Prentice  v.  McKay,  38 
Mont.   114,  98  Pac.   1081    (1909). 

Appropriator  must  be  in  a  position  to 
make  a  beneficial  use  of  the  water 
presently  or  within  a  reasonable  time. 
Smith  v.  Duff,  39  Mont.  382,  102  Pac. 
964,    133   Am.   St.   Rep.   587    (1909). 

B.      Effect  of  Local    Laws. 

Where  the  local  laws  or  customs  per- 
mit an  appropriation  by  one  who  is  not 
a  land  owner  such  an  appropriation  is 
valid.  Thorpe  v.  Tenem  Ditch  Co.,  1 
Wash.   566,   20   Pac.   588    (1899). 


C.      Equitable  Title  Sufficient. 
An  equitable  title  is  sufficient  to  sup- 
port the  right  of  appropriation.     Watts 
v.    Spencer,    51     Or.    262,    94    Pac.    39 
(1908). 

D.      Leasehold    Estate  Sufficient. 

Appropriation  may  be  made  by  one 
holding  a  leasehold  estate.  Sayre  v. 
Johnson,  33  Mont.  15,  81  Pac.  389 
(1905). 

E.      Riparian   Ownership    Not    Neces- 
sary. 

Where  an  appropriation  is  made  for 
the  purposes  of  irrigation  it  is  not 
necessary  that  the  lands  to  be  irri- 
gated be  situated  on  the  bank  of  the 
stream.  Hammond  v.  Rose,  11  Colo. 
524,  19  Pac.  466,  7  Am.  St.  Rep.  258 
(1888). 

Right  to  obtain  water  by  appropria- 
tion is  not  confined  to  riparian  owners. 
Boqiiillas  Land  &  Cattle  Co.  v.  St. 
David    Co-Op.    Commercial    &  Develop- 


1910] 


Avery  v.  Johnson. 


533 


capable  of  producing  fruit,  hay,  and  like  products  in  great  abundance. 
The  plaintiffs  Fruit  succeeded  to  the  rights  of  Warren,  and  plaintiff 
Avery  to  the  rights  of  Kloppenstein.  Both  of  the  original  entry  men  and 
their  successors,  these  plaintiffs,  began  and  have  continued  with  rea- 
sonable diligence  to  irrigate  their  lands,  and  they  have  from  year  to 
year  increased  the  cultivated  and  irrigated  area,  so  that  there  are  now 
on  the  Warren  entry  about  115  acres  in  cultivation,  and  on  the  Kloppen- 
stein tract  about  fifty-four  acres,  put  to  profitable  uses  by  irrigation 
from  the  waters  of  Antoine  Creek.  The  full  flow  of  the  creek  does  not 
exceed  three  and  one-half  cubic  feet  per  second  from  June  to  September, 
and  in  the  extreme  dry  season  does  not  exceed  two  and  one-half  feet, 
and  it  is  shown,  we  think,  by  the  testimony  of  both  sides,  that  this  is  not 
more  than  enough  to  successfully  irrigate  the  lands  of  the  plaintiffs. 
In  1901,  George  Rice  made  homestead  entry  of  160  acres  above  the 
Kloppenstein  lands.  He  cleaned  out  an  old  irrigation  ditch,  which  had 
been  used  by  some  squatter  or  squaw  man  prior  to  the  time  the  reserva- 
tion was  opened^  but  did  not  put  the  water  to  any  beneficial  use.  In 
1902,  Rice  relinquished  to  one  Crosby.  Crosby  never  made  any  entry 
of  the  lands,  being  content,  so  far  as  the  record  shows,  to  remain  a 


.ment  Ass'n,  11  Ariz.  128,  sub  nom. 
Boquillas  Land  &  Cattle  Co.  v.  Curtis, 
89  Pac.  504    (1907). 

A  nonriparian  owner  may  divert 
water  for  domestic  use.  Town  of  Ster- 
ling v.  Pawnee  Ditch  Extension,  42  Colo. 
421,  94  Pac.  339,  15  L.  R.  A.  (X.  S.) 
238    (1908). 

The  appropriator  need  not  be  a 
riparian  owner  on  the  stream  from 
which  the  diversion  is  made.  Willey  v. 
Decker,  11  Wyo.  496,  73  Pac.  210,  100 
Am.   St.   Rep.   939    (1903). 

F.      Vendee    under   Contract   to    Pur- 
chase. 

One  in  possession  under  contract  to 
purchase  may  make  an  appropriation. 
Smith  v.  Denniff,  24  Mont.  20,  60  Pac. 
398,  50  Am.  St.  Rep.  741,  50  L.  R.  A. 
741    (1900). 

II.      Settlers   on    Public    Lands. 

The  right  of  appropriation  may  be 
exercised  by  a  settler  on  the  public  do- 
main.    Porter  v.  Pettingill,  p.  ,  vol. 

3,  this  series. 


A  water  right  may  be  acquired  by 
appropriation  by  settlers  upon  the  pub- 
lic lands.  Davis  v.  Chamberlain,  51 
Or.  304,  98  Pac.   154    (1908). 


III. 


Squatters  on  Public  Lands. 


A  mere  squatter  can  claim  no  rights 
either  as  an  appropriator  or  as  a 
riparian  proprietor.  Avery  v.  Johnson, 
principal  case;  Alta  Land  Co.  v.  Han- 
cock, 85  Cal.  219,  24  Pac.  645,  20  Am. 
St.  Rep.  217  (1890);  Smith  v.  Logan, 
18  Nev.  149,  1  Pac.  678  (1883);  Ken- 
dall v.  Joyce,  48  Wash.  489,  93  Pac. 
1091    (1908). 

Where  water  is  appropriated  by  a 
mere  squatter  upon  government  land, 
who  afterwards  obtains  a  patent  there- 
to, the  time  of  use  of  the  water  while 
he  was  such  squatter  may  be  tacked  to 
his  use  after  obtaining  the  patent. 
Meng  v.  Coffey,  67  Neb.  500,  93  N.  W. 
713,  108  Am.  St.  Rep.  697,  60  L.  R.  A. 
910    (1903). 

A  squatter  upon  the  public  lands 
may  by  actual  beneficial  use  obtain-  such 
title  to  water  that  it  may  be  conveyed 


534 


Water  and  Mineral  Cases.  [Washington 


squatter  until  he  could  dispose  of  his  "right,"  which  he  did  in  the  fall  of 
1904,  to  the  defendants,  who  made  settlement  in  November  of  that  year, 
and  have  since  complied  with  the  homestead  laws  and  now  own  the 
land.  The  testimony  differs  as  to  the  amount  of  land  irrigated  by 
defendants.  They  say  about  twenty  acres  in  1905,  and  increasing  until 
at  the  present  time  the  irrigated  tract  runs  from  thirty-five  to  forty 
acres;  while  the  plaintiffs'  evidence  would  indicate  that  the  present 
irrigated  area  does  not  exceed  twenty-three  acres,  including  seven  or 
eight  acres  on  some  "scrip"  land  lying  further  up  the  creek.  The 
court  made  a  decree,  dividing  the  use  of  the  waters  of  the  creek  between 
all  the  parties,  and  plaintiffs  have  appealed. 

The  court  found,  and  we  think  properly,  that  no  right  of  appropriation 
in  any  of  the  parties  could  antedate  the  opening  of  the  reservation  to 
settlement;  and  for  the  same  reasons  it  would  follow  that  no  right 
could  antedate  an  actual  bona  fide  settlement  upon  contiguous  lands 
capable  of  being  irrigated  by  the  waters  of  the  stream.  Hence,  no  rights 
would  attach  to  respondents'  land  by  reason  of  the  fact  that  a  squatter 
or  squaw  man  took  out  ditches  some  years  before  the  reservation  was 
opened,  and  none  could  attach  by  reason  of  Rice's  homestead  entry, 
or,  if  they  did,  they  were  lost  by  Crosby  who,  although  he  put  in  a 


and  the  rights  of  the  vendee  relate  back 
to  the  original  diversion.  Hough  v. 
Porter,  51  Or.  318,  95  Pac.  732,  98  Pac. 
1093,   102  Pac.   728    (1909). 

Riparian  rights  are  an  incident  of 
ownership,  and  therefore  cannot  be  ac- 
quired by  a  mere  squatter.  Kendall  v. 
Joyce,  48  Wash.  489,  93  Pac.  1091 
(1908). 

No  rights  can  be  acquired  in  an  In- 
dian reservation  prior  to  the  opening 
thereof,  and  hence  no  right  would  attach 
by  reason  of  a  squatter  or  squaw  man 
taking  out  ditches  before  the  reservation 
was  opened.  Avery  v.  Johnson,  principal 
case. 

IV.     Trespassers. 

A  trespasser  on  riparian  land  cannot 
lawfully  exercise  any  right  to  such 
water  or  acquire  any  right  there  by 
virtue  of  sections  180  et  seq.  of  the  Mon- 
tana Civil  Code.  Alta  Land  Co.  v.  Han- 
cock, 85  Cal.  219,  24  Pac.  645,  20  Am. 
St.  Rep.  217  (1890);  Smith  v.  Denniff, 
24  Mont.   22,   60  Pac.   398,   81   Am.   St. 


Rep.  408,  50  L.  R.  A.  741  (T900); 
Hough  v.  Porter,  38  Mont.  114,  98  Pac. 
1081    (1909). 

Where  a  trespasser  appropriates  water 
and  conveys  his  right  thereto  to  one 
who  afterwards  becomes  a  lessee  of  the 
land,  the  latter  may  hold  the  right. 
Seaweard  v.  Pacific  Livestock  Co.,  49 
Or.   157,  88  Pac.  963    (1907). 

The  right  may  be  acquired  by  tres- 
passers upon  public  land.  Patterson  v. 
Ryan    (Utah),   108  Pac.   1118    (1910). 

A  right  by  actual  appropriation  may 
be  acquired  by  a  trespasser  upon  un- 
surveyed  government  land.  Patterson 
v.  Ryan   (Utah),  108  Pac.  1118    (1910). 

The  right  of  appropriation  may  be 
acquired  by  a  trespasser,  and  this  right 
may  become  superior  to  that  of  the 
real  owner.  Patterson  v.  Ryan  (Utah), 
108  Pac.  1118    (1910). 

V.      Miners. 

Miners  upon  lands  not  riparian  may 
appropriate  water  for  the  use  of  their 
mines.     Krall  v.  United  States,  79  Fed. 


1910] 


Aveey  v.  Johnson. 


535 


small  garden,  had  no  right  or  title,  present  or  prospective,  to  the  land. 
If  a  party  seeks  to  claim  water  for  irrigating  agricultural  land  by 
appropriation,  he  must  own  the  land  sought  to  be  irrigated,  or  be  an 
actual,  bona  fide  settler  having  a  possessory  interest.  There  must  be 
evidence  of  an  intent  to  acquire  title.  The  right  of  a  squatter  or  spec- 
ulator to  claim  the  right  of  appropriation  has  not  been  recognized  by 
custom  or  sanctioned  by  statute.  That  Crosby  did  not  sustain  any  bona 
fide  relation  to  the  land  is  sufficiently  evidenced  by  the  fact  that  although 
the  land  was  surveyed  and  open  to  entry,  he  carried  Rice's  relinquish- 
ment to  the  government  for  nearly  two  years  without  filing  it  or  making 
any  entry  on  his  own  behalf.  A  mere  squatter  can  claim  no  right  either 
as  an  appropriator  or  a  riparian  proprietor.  Kendall  v.  Joyce,  48  Wash. 
489,  93  Pac.  109 1 ;  Kinney,  Water  &  Water  Rights,  §  286;  Alta  Land 
Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217;  Smith 
v.  Logan,  18  Nev.  149,  1  Pac.  678.  It  follows  that  respondents'  title 
to  the  waters  of  Antoine  Creek  must  date  from  the  time  of  their  entry 
in  1904,  at  which  time  they  were  subject  to  the  prior  appropriation 
of  the  appellants  who,  as  the  evidence  shows,  will  probably  need  the 
entire  flow  in  the  dry  season  of  the  year. 


241,  24  C.  C.  A.  543  (1897)  ;  Van  Dyke 
v.  Midnight  Sun  Mining  &  Ditch  Co., 
177  Fed.  85    (1910). 

Owning  a  placer  gold  mine  on  land 
riparian  to  a  stream  is  not  an  appro- 
priation of  the  water  thereof.  An  ac- 
tual beneficial  use  is  essential.  Snyder 
v.  Colorado  Gold  Dredging  Co.,  181 
Fed.  62    (1910). 

VI.      Filling   Fish    Ponds. 

The*  filling  of  reservoirs  or  artificial 
lakes  for  the  propagation  of  fish  is  not 
a  beneficial  use.  Windsor  Reservoir  & 
Canal  Co.  v.  Lake  Supply  Ditch  Co.,  44 
Colo.  214,  98  Pac.  729    (1908). 

The  waters  of  a  stream  may  be  di- 
verted for  purposes  of  fish  ponds  if  they 
are  allowed  to  run  back  again  unpol- 
luted. State  v.  Barker  (Idaho),  108 
Pac.   (1910.). 

VII.      Power  for  Electricity. 

Power  for  operating  an  electrical 
plant  is  a  beneficial  use.  Thompson  Co. 
v.  Pennabaker,  173  Fed.  849,  97  C.  C.  A. 
591    (1909). 


VIII.      Speculators. 

A  speculator  with  no  intention  to  ap- 
ply the  water  to  any  beneficial  use  ac- 
quires no  rights  by  posting  of  notice. 
Miocene  Ditch  Co.  v.  Champion  Mine  & 
Trading  Co.,   3  Alaska    572    (1908). 

No  one  can  make  a  valid  appropria- 
tion for  the  purposes  of  speculation 
only.  Weaver  v.  Eureka  Lake  Co.,  15 
Cal.   271    (1860). 

An  appropriation  cannot  be  made  for 
speculative  purposes.  Toohey  v.  Camp- 
bell, 24  Mont.  13,  60  Pac.  396  (1900). 

An  appropriation  cannot  be  made  for 
the  purpose  of  securing  a  monopoly  and 
preventing  beneficial  use  by  others. 
Hewett  v.  Story,  64  Fed.  510,  12  C.  C.  A. 
250,  29  U.  S.  App.  155,  30  L.  R.  A. 
265  (1895);  Nevada  County  &  Sacra- 
mento Canal  Co.  v.  Kidd,  37  Cal.  282 
(1869)  ;  Hayne  v.  Nephi  Irrigation  Co., 
16  Utah  421,  52  Pac.  765,  67  Am.  St. 
Rep.  623,  41  L.  R.  A.  311    (1898). 

IX.      Corporations. 

A  corporation  formed  to  divert  and 
carry  water,  but  possessing  no  land  to 


536 


Water  and  Mineral  Cases.  [Washington 


The  case  falls  squarely  within  the  rule  of  Longmire  v.  Smith,  26 
Wash.  439,  67  Pac.  246,  58  L.  R.  A.  308,  rather  than  Benton  v.  John- 
cox,  17  Wash.  277,  49  Pac.  495,  39  L.  R.  A.  107,  61  Am.  St.  Rep.  912, 
and  Nesalhous  v.  Walker,  45  Wash.  621,  88  Pac.  1032,  as  is  contended 
by  respondents.  The  latter  cases  define  the  rights  of  parties  riparian  to 
a  stream  to  use  water  for  irrigation  as  an  incident  to  their  riparian 
right,  and  do  not  apply  unless  the  rights  of  all  parties  are  equal  and 
dependent  upon  riparian  right.  In  the  case  at  bar  the  waters  of  Antoine 
Creek  were  appropriated  and  being  used  at  the  time  respondents  settled 
and  filed  on  their  land,  and  were  not  subject  to  a  riparian  right  to  use 
the  waters  for  irrigation,  as  against  the  first  appropriator,  who  has 
perfected  his  title  and  was  with  reasonable  diligence  extending  the  area 
of  cultivation  on  his  lands  riparian  to  the  stream.  "It  is  an  elementary 
principle  of  the  law  of  appropriation  of  water  for  irrigation  that  the 
first  appropriator  is  entitled  to  the  quantity  of  water  appropriated  by 
him,  to  the  exclusion  of  subsequent  claimants  by  appropriation  or  ripar- 
ian ownership."     Longmire  v.  Smith,  supra. 

It  is  unfortunate  that  the  flood  waters  of  Antoine  Creek  cannot  be 
conserved  for  the  use  of  all,  but  so  long  as  our  laws  measure  the  rights 
of  the  appropriator  of  water  by  the  necessities  of  the  dry  season,  the 


which  it  could  be  applied,  is  not  an 
appropriator.  Gould  v.  Maricopa  Canal 
Co.,  8  Ariz.  429,  76  Pac.   1125    (1904). 

X.      Aliens. 

Appropriation  may  be  made  by  an 
alien.  Santa  Paula  Water  Worka  v. 
Peralta,  113  Cal.  38,  45  Pac.  68  (1896)  ; 
Quigley  v.  Birdseye,  11  Mont.  439,  28 
Pac.   741    (1892). 

XI.     Successor    in    Interest. 

The  successor  in  interest  of  one  who 
has  commenced  the  work  necessary  to 
the  appropriation  of  a  water  right  may 
complete  it.  Nevada  Ditch  Co.  v.  Ben- 
nett, 30  Ot.  59,  45  Pac.  472,  60  Am. 
St.  Rep.  777  (1896). 
XII.     Personal  Use  Not  Necessary. 

Sale  or  rental  to  others  who  will  put 
to  a  useful  purpose  is  a  sufficient 
beneficial  use.  Farmer's  Co-Operative 
Ditch  Co.  v.  Riverside  Irrigation  Dis- 
trict, 14  Idaho  450,  94  Pac.  761   (1908). 

It  is  not  necessary  that  the  appro- 
priator    make     use    of    the    water    per- 


sonally or  use  it  upon  his  own  land. 
Nevada  Ditch  Co.  v.  Bennett,  30  Or.  59, 
45  Pac.  472,  60  Am.  St.  Rep.  777 
(1896). 

Use  may  be  by  others  than  the  ap- 
propriator and  on  lands  not  owned  by 
him.  Hough  v.  Porter,  51  Or.  318,  98 
Pac.  1083,  95  Pac.  732,  102  Pac.  728 
(1909). 

As  to  the  time  of  the  commencement 
of  the  right  under  appropriation,  see 
note  to  Wishon  v.  Globe  Light  &  Power 
Co.,  p.  ,  vol.  2,  this  series. 

As  to  the  appropriation  being  limited 
to  the  beneficial  use  made  of  the  water, 
see  note  to  Porter  v.  Pettingill,  p. 
,  vol.  3,  this  series. 

As  to  application  of  the  water  to  a 
beneficial  use  being  essential  to  a  com- 
plete   appropriation,    see   part   III    note 

to  Drach  v.  Ieola,  p.  ,  vol.  2,  this 

series. 

As  to  diligence  in  completing  appro- 
priation being  required,  see  note  to 
Drach  v.  Isola,  p. ,  vol.  2,  this  series. 


1910]  Avery  v.  Johnson.  537 

first  in  time  must  be  held  to  be  the  first  in  right.  The  just  purpose  of 
the  trial  judge  to  apportion  the  waters  cannot  be  sustained  in  the  light 
of  the  evidence  showing  that  there  is  no  excess  of  water  running  to,  or 
waste  by,  the  appellants. 

This  cause  is  remanded  with  instructions  to  enter  a  decree  fixing  the 
amount  of  water  actually  necessary  to  irrigate  the  lands  of  appellants 
even  to  the  full  flow  of  the  stream  in  the  dry  season ;  leaving  the  residue, 
if  any,  subject  to  the  riparian  right  of  respondent. 

RUDKIN,  C.  J.,  and  FULLERTON,  GOSE,  and  MORRIS,  JJ., 
concur. 


538  Water  and  Mineral  Cases.  [Montana 

MURRAY  v.  WHITE  et  al. 

[Supreme  Court  of  Montana,  January  16,  1911.] 

—  Mont.  —,113  Pac.  754., 

1.  Placer  Claim — Quantity  of   Metal. 

No  specific  yield  is  necessary  to  constitute  a  placer  nor  is  it  required  that  the 
deposits  of  mineral  shall  be  sufficiently  extensive  to  pay  operating  expenses  in  order 
to  maintain  a  valid  placer  claim. 

2.  Same — Discovery. 

The  finding  of  precious  metals  in  quantity  which  justifies  the  expenditure  of  time 
and  money  with  the  reasonable   hope  of  reward  is  sufficient  to  constitute  a  discovery. 

3.  Contracts — Fraud. 

One  alleging  fraudulent  concealment  in  a  contract,  has  the  burden  of  showing 
that  the  fact  concealed  was  material  and  that  but  for  the  concealment  he  would  not 
have  entered  into  the  agreement. 

4.  Same — Consideration. 

Evidence  of  discovery  held  sufficient  to  constitute  the  relinquishment  of  a  placer 
claim  a  sufficient  consideration  for  a  contract. 

5.  Same; — Illegality. 

A  contract  whereby  one  claimant  agrees  to  procure  a  patent  to  certain  land  for 
the  use  of  another  in  order  to  defeat  a  prior  grant  by  that  other,  is  not  illegal 
nor  against  public  policy. 

6.  Same — Construction. 

A  contract  whereby  one  party  agrees  to  pay  one-half  the  expense  of  securing 
a  patent  to  land  held  not  to  cover  one-half  of  a  contingent  fee  of  $8,000  to  the 
attorney  assisting  in  procuring  the  patent. 

7.  Public   Domain — Mineral   and   Agricultural    Entries. 

A  compromise  between  one  asserting  title  under  a  mineral  location  and  another 
claiming  under  an  agricultural  entry,  whereby  each  received  a  part  under  his  appli- 
cation, is  not  illegal  or  fraudulent. 

8.  Same — Entry  for  Another. 

A  contract  by  one  making  entry  by  virtue  of  soldier's  additional  scrip,  whereby 
he  agrees  to  make  entry  for  the  use  of  another,  is  not  against  public  policy  where 
it  does  not  appear  that  the  usee  was  not  qualified  to  take  patent  in  his  own  name. 

Appeal  from  District  Court,  Silver  Bow  County;  Jeremiah  J.  Lynch, 
Judge. 

Suit  for  specific  performance  by  James  A.  Murray  against  Robeson  T. 
White  and  another.  Decree  for  the  plaintiff.  Defendants  appeal.  Af- 
firmed. 

For  appellants — Kirk,  Bourquin  &  Kirk  and  W.  T.  Pigott. 

NOTE.  I    covery    of    mineral    on    mining   location, 

As  to  necessity  for  and  effect  of  dis-   \  see  note  to  Charlton  v.  Kelly,  ante,  p.  293. 


Muebay  y.  White  et  al.  539 


1911] 

For  respondent— Roote  &  Murray. 

HOLLOWAY,  J.  This  suit  was  brought  by  Murray  to  enforce 
the  soecific  performance  of  a  contract  to  convey  real  estate.  From  a 
decree  in  favor  of  plaintiff  and  from  an  order  denying  them  a  new  trial 

*1*2ZS2?£S£*  *-  that  in  July,  >89S,  he  and  the 
detendant  White  each  had  an  application  before  the  Land  Deparffnent 
of  the  United  States,  to  enter  the  S.  £  S.  E.  %  and  S.  E.  %  S  W 
V,  of  section  17,  township  3  N,,  range  7  W.,  in  Sdver  Bow  County ,  that 
the  Hart  s  wer  claiming  the  land  adversely,  and,  for  the  purpose  of 
effccdng  a  compromise  and  facilitating  the  issuance  of  patent,  they  en- 
tered into  a  contract  by  the  terms  of  which  Murray  agreed  to  relinquish 
tered  into  a  '  ,    hereinafter  called  the  west  forty,  and 

ttVTsW*^  -lled  the  middle  forty,  and  not  hin- 
der or  obsWct  me  issuance  of  patent  therefor  to  White;  and  White 
afreed  to  relinquish  his  claim  ,0  the  S.  E.  *  S.  E.  J4,  hereinafter  ca fed 
the  east  forty,  and  not  thereafter  hinder  Murray  m  securing  patent  to ,*at 
port  on  of  the  land;  that  White  further  agreed  to  procure  the  nght  to 
ma.  eand  make,  a  soldier's  additional  homestead  entry,  or  other  scrip 
TnTry'  upon  the  west  and  middle  forties,  procure  patent  therefor,  and, 
as  s^on  as  patent  should  be  issued,  transfer  the  middle  forty  to  Murray, 
upon  Mu  ray's  paying  one-half  the  expense  of  such  patent  proceedings, 
ftfa  then  aLed  that  pursuant  to  the  agreement  the  respective  relm- 
nukhmen*  wefemade;  tot  White  procured  patent  to  the  west  and  nud- 
dffories-  that  Murray  paid  a  part  of  the  expense  and  offered  to  pay 
Z  ba  an  e  ?f anv,  of  the"  one-half  of  such  expense,  and  has  otherwise 
"d  his  part'  of  the  agreement,  but  that  White  refuses  to  rend 
inv  account  of  the  expense  of  procuring  patent,  and  refuses  to  convev 
the  mddk  forty  as  he  agreed  to  do.    It  is  alleged  that  defendant  Lloyd 
daimlome  invest  in  tlie  land  in  controversy,  but  that  any  claim  which 
he  may  have  was  acquired  subsequently  to  the  date  of  the  agreement 
Ween  Murray  and  White,  and  with  full  knowledge  of  Murray's  rights. 
A  cony  of  the  agreement  is  attached  to,  and  made  a  part  of,  the  com- 
1  It      Th    answer  of  the  defendant  Lloyd  alleges  that  h,s  only  c  aim 
to  the  land  is  subordinate  to  the  claim  of  Wlute    and  depends  for  its 
va! Witv  upon  a  successful  defense  by  White.     The  answer  of  the  de- 
lend  nt  White  does  not  deny  any  allegation  of  the  complaint,  but  con- 
tains  form  separate  affirmative  defenses.     The  material  allegations  of 
these  defenses  were  denied  in  a  reply.  Upon  the  trial  the  defendants  as- 
"em  d  tie  burden  of  proof.     The  trial  court  found  against    hem  a ^s    o 
every  one  of  their  defenses,  and  the  contention  now  is  that  the  evidence 
preponderates  against  the  findings  made. 


540  Water  and  Mineral  Cases.  [Montana 

First  Defense.  It  is  alleged  that  the  contract  was  procured  by  fraud, 
misrepresentation,  and  unfair  practices  on  the  part  of  Murray,  in  this : 
That  all  the  lands  were  agricultural  lands  of  the  United  States;  that 
White  had  a  bona  fide  application  before  the  United  States  Land  Depart- 
ment to  enter  such  lands  under  the  homestead  laws ;  that  Murray  claimed 
that  all  of  the  lands  contained  valuable  deposits  of  placer  gold,  and  was 
claiming  them  under  a  pretended  location  thereof  as  a  placer  mining  claim, 
whereas,  in  truth  and  in  fact,  said  lands  did  not  contain  any  deposits  of 
placer  gold  and  were  nonmineral  in  character,  all  of  which  facts  were 
well  known  to  Murray  but  unknown  to  White ;  that  in  fact  Murray  did 
not  have  any  claim  to  the  lands ;  had  prior  thereto  relinquished  his  pre- 
tended claim  to  the  east  forty  altogether,  and  permitted  others  to  locate 
the  same ;  that,  for  the  purpose  of  deceiving  White  and  inducing  him 
to  enter  into  the  contract  in  question,  Murray  misrepresented  the  char- 
acter of  his  pretended  claim  to  the  west  and  middle  forties,  and  con- 
cealed from  White  the  fact  that  he  had  no  claim  whatever  to  the  east 
forty;  that  Murray  represented  that  he  had  a  good  and  valid  placer  lo- 
cation upon  the  lands  and  would  contest  and  litigate  with  White  for 
the  lands ;  that,  relying  on,  and  believing  in,  Murray's  representations  as 
to  the  character  of  his  claim,  and  to  avoid  the  threatened  litigation,  and 
not  otherwise,  White  entered  into  the  agreement. 

(a)  Appellants  attack  Murray's  placer  location  as  being  fraudulent. 
They  insist  that  the  evidence  shows  that  Murray  knew  that  the  ground 
was  nonmineral  in  character,  and  that  his  representation  to  White  that 
he  had  a  valid  placer  location  was  false,  and  made  with  intent  to  deceive 
White  and  induce  him  to  enter  into  the  contract.  It  is  true  that  the 
evidence  as  to  the  presence  of  minerals  in  the  ground  is  very  slight,  and 
that  Murray  had  maintained  his  location  for  several  years  without  devel- 
oping a  paying  placer,  and  without  demonstrating  that  the  ground  was 
in  fact  valuable  for  the  minerals  it  contained.  But  there  is  some  evi- 
dence that  placer  gold  had  been  discovered  in  the  ground,  the  surface 
of  which  is  decomposed  granite  and  other  rock  washed  down  from  the 
nearby  mountains.  All  the  other  portions  of  section  17  have  been  pat- 
ented as  placer  locations.  The  ground  is  situated  near  the  great  quartz 
mines  of  Butte,  and  along  the  same  stream,  and  not  far  from  producing 
placers.  The  general  character  of  the  soil  and  the  location  of  the  ground 
are  such  as  to  indicate  the  presence  of  placer  gold.  Witnesses  expressed 
the  opinion  that  the  ground  could  be  mined  profitably  by  dredging. 
Under  these  circumstances  we  do  not  think  that  it  can  be  said  that  the 
evidence  shows  such  a  degree  of  poverty  in  the  placer  claim  that  Murray's 
assertion  of  that  claim  should  be  held  to  be  fraudulent.  Neither  the 
federal  nor  state  statutes  require  that,  to  constitute  a  placer,  the  ground 


1911]  Murbay  v.  White  et  al.  541 

shall  yield  any  specific  quantity  of  precious  metals.     Neither  is  it  re- 
quired that  the  deposits  of  mineral  shall  be  sufficiently  extensive  to  pay 
^operating  expenses,  in  order  to  locate  and  maintain  a  valid  placer  claim. 
It  has  long  been  the  settled  rule  that   to  constitute  a  discovery   within 
the  meaning  of  that  term  as  used  in  mining  law,  it  is  sufficient  that 
precious  metals  be  found  in  the  ground  in  quantity  which  justifies  the  lo- 
cator in  spending  his  time  and  money  in  prosecuting  development  work, 
with  the  reasonable  hope  or  expectation  of  finding  mineral  in  payment 
quantities.     Harrington  v.  Chambers,  3  Utah    94    1  Pac.  362;  Book  v. 
Mining  Co.  (C.  C),  58  Fed.  106;  Nevada  Sierra  Oil  Co.  v.  Home  Oil 
Co.  (C.  C),  98  Fed.  676;  27  Cyc.  556;  Snyder  on  Mines,  §§  349.  Z&>'> 
Shreve  v.  Copper  Bell  M.  Co.,  11  Mont.  309,  28  Pac.  315;  McShane  v. 
Kenkle,  18  Mont.  208,  44  Pac.  979,  33  L.  R.  A.  851,  56  Am.  St.  Rep. 
579;  Noyes  v.  Clifford,  37  Mont.  138,  94  Pac.  842.     The  precious  metals 
are  not  evenly  distributed  throughout  veins  or  placer  ground.     A  claim 
may  be  barren  in  one  part,  poor  in  another,  rich  in  another,  and  withal 
very  valuable  as  a  whole,  so  that  the  failure  of  the  locator  to  develop 
a  paying  property  within  any  given  time  is  not  conclusive  against  the 
validity  of  his  claim.    It  is  a  part  of  the  history  of  this  mining  region  that, 
even  in  the  case  of  a  placer  claim,  much  time  and  labor  must  be  expended 
and  considerable  expense  incurred  in  developing  a  paying  claim,  when 
bed  rock  is  covered  with  great  quantities  of  debris,  as  is  the  case  in 
the  present  instance.     The  evidence  shows  that  Murray  is  a  man  of 
experience  in  mining  operations,  and  that  he  evidenced  his  faith  in  the 
validity  of  his  claim  by  the  expenditure  of  considerable  money  in  sinking 
shafts  in  attempts  to  reach  bed  rock,  where  he  expected  to  find  placer 
gold.     Furthermore,  White  had  an  equal  opportunity  with  Murray  to 
examine  the  soil,  determine  its  character,  and  decide  for  himself  whether 
Murray's  contention  that  the  land  was  mineral  in  character  had  any  foun- 
dation in  fact.     While  there  are  facts  and  circumstances  which  tend  to 
discredit  Murray's  claim,  we  are  not  satisfied  that  the  evidence  prepon- 
derates against  the  trial  court's  finding. 

(b)  It  is  further  insisted  that  Murray  perpetrated  a  fraud  on  White  in 
concealing  the  fact  that  he  had  already  relinquished  his  claim  to  the  east 
forty.  The  defendants,  having  the  burden  of  proof,  were  compelled  to 
show  (1)  that  the  fact  concealed  was  a  material  one,  and  (2)  that  but 
for  the  concealment,  White  would  not  have  entered  into  the  agreement. 
White  testified  that  some  time  in  the  early  part  of  1898,  before  the  con- 
tract with  Murray  was  entered  into,  he  discovered  that  the  east  forty  con- 
tained brick  clay ;  that  he  called  this  fact  to  the  attention  of  his  attorney, 
and  was  advised  that  the  Land  Department  might  hold  that  forty  subject 
to  mineral  entry,  and  because  of  this  advice  he  did  not  attach  so  much 


542  Watee  and  Mineral  Cases.  [Montana 

value  to  his  homestead  application  for  that  forty;  that  he  was  of  the 
opinion  that  the  Land  Department  bad  classified  the  middle  and  west 
forties  as  agricultural  land ;  that  he  knew  the  east  forty  was  clay  placer, 
and  that  he  had  little  hope  of  success  in  contesting  with  Murray.  Further- 
more, White  testified  that  his  negotations  with  Murray  commenced  in 
May  or  June,  1898;  that  Murray  then  asserted  his  claim,  and  that  he 
could  secure  proof  necessary  to  procure  patent  as  a  placer;  that  at 
their  first  meeting  Murray  suggested  the  terms  of  the  compromise,  and 
he  agreed  to  them ;  that  he  knew  in  a  general  way  that  the  surrounding 
lands  had  been  taken  up  as  mineral  claims,  and  that  he  signed  a  relin- 
quishment to  the  east  forty,  in  which  he  stated  that  it  was  mineral  land. 
It  is  somewhat  singular  that,  while  evidence  was  given  by  defendants 
as  to  the  value  of  the  west  and  middle  forties,  there  was  not  any  given 
as  to  the  value  of  the  east  forty  at  the  time  the  agreement  between  White 
and  Murray  was  entered  into,  and  we  are  unable  to  know  what,  if  any, 
value  White  attached  to  his  homestead  entry  at  that  time,  so  far  as  it 
related  to  the  east  forty;  while  the  evidence  given  by  plaintiff  is  that 
the  land  was  practically  valueless  for  agricultural  purposes.  At  the 
time  the  agreement  was  entered  into,  the  only  claim  made  by  White  to  any 
of  the  land  was  based  upon  his  application  to  enter  it  under  the  homestead 
laws,  and  his  own  cross-examination  tends  strongly  to  cast  suspicion 
upon  the  bona  fides  of  that  claim. 

While  the  evidence  is  not  very  definite,  we  think  it  fairly -inferable  that 
the  terms  of  the  contract  were  actually  agreed  upon  before  Murray  re- 
linquished his  claim  to  the  east  forty,  even  though  the  terms  had  not  been 
reduced  to  writing,  and,  if  this  is  so,  it  was  wholly  immaterial  to  White 
what  disposition  Murray  made  of  his  claim  to  that  parcel  of  land,  and 
inconceivable  that  Murray's  subsequent  concealment  of  the  fact  that  he 
had  relinquished  his  claim  could  prejudice  White.  Viewed  in  any  light, 
we  think  that  the  defendants  failed  to  maintain  the  burden  cast  upon  them 
of  showing  that  Murray's  concealment  of  the  fact  of  his  relinquishment 
at  the  time  the  contract  was  executed  misled  White  to  his  prejudice; 
or,  speaking  more  accurately,  the  evidence  does  not  preponderate  against 
the  trial  court's  finding  upon  this  question. 

Second  Defense.  This  defense  is  based  upon  a  want  of  or  inadequate 
consideration.  It  is  alleged  that  the  agreement  on  the  part  of  Murray  to 
defray  one-half  the  expenses  of  procuring  patent  to  the  middle  and  west 
forties  was  wholly  fictitious ;  that  Murray  did  not  have  any  valid  claim  to 
any  of  the  land,  and  was  therefore  not  foregoing  any  advantage  or  sur- 
rendering any  right  in  relinquishing  his  pretended  claim  to  those  two 
forties ;  that,  at  the  time  the  contract  was  made,  the  land  was  of  the  value 
of  $200  per  acre;  that  defendant  White  had  the  preference   right  to 


1911]  Muekat  v.  White  et  al.  543 

enter  all  three  forties,  by  virtue  of  his  successful  contest  with  one  Mc- 
Crimmon,  a  former  claimant.  It  is  unnecessary  to  revert  again  to  the 
evidence  touching  the  character  of  White's  homestead  or  Murray's  placer 
claim.  Under  a  charitable  view  we  think  it  can  be  said  that  each  had 
a  claim,  which  he  was  asserting  to  the  entire  three  forties,  and  this  being 
so,  Murray's  relinquishment  of  his  claim  to  the  west  forty  was  a  valid 
and  sufficient  consideration  for  this  contract.  Tessendorf  v.  Lasater,  10 
Kan.  App.  19,  61  Pac.  6jj ;  Hardesty  v.  Service,  45  Kan.  614,  26  Pac.  29; 
Waring  v.  Loomis,  35  Wash.  85,  76  Pac.  510;  McCabe  v.  Caner,  68  Mich. 
182,  35  N.  W.  901. 

The  third  defense  is  that  the  consideration  for  the  contract  was  illegal. 
It  is  alleged  that  some  time  prior  to  the  execution  of  the  contract  Murray 
had  granted  a  right  of  way  over  the  middle  forty  to  a  street  railway 
company;  that  when  Murray  and  White  reached  an  agreement  for  a  di- 
vision of  this  land,  White  insisted  that  he  should  procure  patent  to  the 
west  forty  independently  of  Murray,  and  leave  Murray  to  procure  pat- 
ent to  the  middle  and  east  forties ;  that  Murray  refused  to  agree  to  this 
arrangement  but  insisted  that  White  secure  patent  to  the  middle  forty 
for  the  use  of  Murray,  to  the  end  that  Murray  might  coerce  the  street 
railway  company  into  paying  again  for  the  right  of  way,  and  thereby 
cheat  and  defraud  the  railway  company,  and  because  of  Murray's  in- 
sistence upon  this  term,  and  not  otherwise,  White  entered  into  the  agree- 
ment as  made.  The  contract,  a  copy  of  which  is  attached  to  the 
complaint,  does  not  contain  anything  suggestive  of  illegality;  and  White 
protests  his  innocence  of  any  active  participation  in  the  fraud  which  he 
claims  Murray  desired  to  perpetrate.  Under  the  allegations  of  the  com- 
plaint, it  is  not  just  clear  how  Murray  could  carry  into  effect  his  design. 
White  was  not  bound  by  the  contract  to  aid  Murray  in  any  way.  His 
obligation  extended  only  to  securing  patent  and  transferring  the  middle 
forty  to  Murray. 

There  is  not  any  principle  of  law  better  settled  than  that  a  party  to  an 
illegal  contract  cannot  come  into  a  court  of  equity  and  have  the  illegal 
object  carried  into  effect;  but  this  suit  does  not  have  any  such  purpose. 
The  contract  obligates  White  to  deed  the  land  to  Murray  personally.  If 
the  performance  of  the  contract  is  enforced,  White  and  Murray  will  each 
have  received  just  what  he  agreed  he  should  receive,  and  no  fraud  will 
have  been  perpetrated  on  any  one.  Does  it  lie  in  the  mouth  of  White  to 
say.  then,  that,  although  the  contract  was  fair  and  just  as  between  him  and 
Murray,  still  it  ought  not  to  be  enforced,  because  at  the  time  of  its 
execution  Murray  cherished  the  hope  that  he  might  be  able  to  defraud 
the  street  railway  company  by  virtue  of  the  terms  of  the  contract?  We 
think  not. 


544  Water  and  Mineral  Cases.  [Montana 

Counsel  for  appellants  have  not  called  our  attention  to  any  decided  case 
similar  in  its  facts  to  the  case  before  us,  and  neither  have  we  found  any. 
As  nearly  an  analogous  case  as  we  can  find  is  made  out  by  these  facts : 
A.,  a  resident  of  this  state,  loans  money  to  B.,  who  gives  a  mortgage  upon 
land  situated  in  this  state  as  security  for  the  loan ;  but  at  A.'s  request  the 
mortgage  and  note  are  made  to  run  to  C,  who  is  a  nonresident,  and  this  is 
done  for  the  purpose  of  defrauding  the  state  out  of  the  taxes  upon  the 
mortgage.  A.  takes  an  assignment  from  C.  of  the  note  and  mortgage, 
but  does  not  place  the  assignment  on  record  until  foreclosure  is  sought. 
Upon  B.'s  default,  A.  commences  foreclosure  proceedings  and  B.  defends 
upon  the  ground  that  the  contract  was  and  is  void  as  against  public  policy. 
Upon  these  facts  the  Nevada  and  Kansas  courts  have  refused  to  fore- 
close the  mortgage.  Drexler  v.  Tyrrell,  15  Nev.  114;  Sheldon  v.  Pruess- 
ner,  2  Kan.  79,  35  Pac.  201,  22  L.  R.  A.  709.  But  the  decided  weight 
of  authority  is  against  the  holding  of  these  courts.  Crowns  v.  Forest 
Land  Co.,  99  Wis.  103,  74  N.  W.  546 ;  Nichols  v.  Weed  Sewing  Machine 
Co.,  27  Hun  200,  S.  C.  97  N.  Y.  650;  Callicott  v.  Allen,  31  Ind.  App.  561, 
67  N.  E.  196;  Jones  on  Mortgages,  §  619,  and  note;  Stilwell  v.  Corwin, 
55  Ind.  433,  23  Am.  Rep.  672.  We  think  the  rule  is  quite  well  settled  that 
courts  will  not  hold  a  contract  void  as  against  public  policy,  unless  the 
contract  itself  requires  that  something  be  done  which  adversely  affects  the 
public  welfare,  or  is  forbidden  by  law,  or  the  consideration  is  illegal  or  im- 
moral. Callicott  v.  Allen,  above.  In  Lawson  v.  Cobban,  38  Mont.  138, 
99  Pac.  128,  this  court  said :  "Courts  are  reluctant  to  declare  a  contract 
void  as  against  public  policy,  and  will  refuse  to  do  so  if,  by  any  reason- 
able construction  the  contract  can  be  upheld."  This  contract  is  not  of 
itself  illegal  or  immoral.  The  consideration  for  it  was  the  compromise  of 
the  conflicting  claims  of  Murray  and  White.  We  do  not  think  that  it 
can  be  said  that  it  falls  within  the  class  of  contracts  the  enforcement  of 
which  is  denied  on  the  ground  of  public  policy. 

Fourth  Defense,  (a)  The  fourth  defense  is  based  upon  the  proposi- 
tion that,  since  Murray  had  a  mineral  application  for  all  these  forties, 
and  White  had  an  agricultural  application  for  the  same  lands,  there 
could  not  be  a  lawful  compromise  of  their  claims  so  that  one  could  re- 
ceive a  part  of  the  disputed  ground  under  a  mineral  application,  and 
the  other  the  remaining  portion  under  his  agricultural  application.  In  their 
brief  counsel  for  appellants  say:  "The  two  claims  were  antagonistic  to 
each  other;  one  of  them  was  fraudulent  and  illegal,  based  on  false  tes- 
timony, and  was  an  attempt  to  defraud  the  Government  of  the  United 
States."  This  premise  is  clearly  erroneous,  and  the  argument  based  upon 
it,  of  course,  equally  so.  That  one  person  in  perfect  good  faith  may  assert 
a  mineral  application  for  a  particular  parcel  of  public  land,  and  another 


1911]  Murray  v.  White  et  al.  545 

person,  equally  in  good  faith,  may  assert  his  agricultural  application  for 
the  same  ground,  is  beyond  question.  The  same  land  may  be  valuable 
for  both  mineral  and  agricultural  purposes.  Its  mineral  value  may  be 
slight,  and  under  such  circumstances  it  is  a  question  of  fact  whether  it 
is  mineral  land  within  the  meaning  of  the  federal  statute.  Under  such 
circumstances  the  controversy  is  settled  by  the  Land  Department,  by 
determining  whether  the  land  is  more  valuable  for  the  one  purpose  or 
the  other.  Washington  v.  McBride,  18  Land  Dec.  Dep.  Int.  199; 
Sweeney  v.  Northern  Pacific  R.  Co.,  20  Land  Dec.  Dep.  Int.  394 ;  Walker 
v.  Southern  Pacific  R.  Co.,  24  Land  Dec.  Dep.  Int.  172. 

It  is  conceded  that,  as  between  rival  claimants  for  the  same  piece  of 
public  land,  a  compromise  of  their  differences  is  recognized — even  en- 
couraged— by  the  government;  but  it  is  argued  that,  in  every  instance 
wherein  reference  was  made  to  this  well-known  rule,  both  claimants 
were  asserting  rights  under  the  same  general  character  of  entry.  And  it 
is  insisted  that  a  case  cannot  be  found  in  which  the  government  recog- 
nized the  right  of  one  claimant,  who  was  asserting  title  under  a  mineral 
location,  and  his  rival,  who  was  asserting  title  under  an  agricultural  entry, 
to  compromise  their  differences,  so  that  one  could  secure  patent  to  a  por- 
tion of  the  land  under  his  mineral  application,  and  the  other  the  remaining 
portion  under  his  agricultural  entry;  and  this  may  be  true,  but  the  fact, 
if  it  is  a  fact,  that  such  a  case  has  not  been  determined  can  scarcely  be 
considered  evidence  that  such  a  compromise  would  not  be  recognized  by 
the  federal  authorities,  if  a  case  presenting  it  did  arise.  We  do  not  see 
any  difference  in  principle  between  a  case  of  this  kind  and  one  involving 
a  controversy  between  rival  claimants  under  the  same  character  of  entry. 
Of  course,  title  to  known  mineral  land  cannot  be  secured  under  agricul- 
tural entry  (section  2318,  Rev.  St.  U.  S.  [page  1423,  U.  S.  Comp.  St. 
1901]),  and  any  effort  on  the  part  of  rival  claimants  to  secure  such  a 
result  would  be  defeated  as  an  attempted  fraud  on  the  government;  but 
where,  as  in  the  case  before  us,  the  land  has  little  value  for  either  pur- 
pose, and  there  is  a  bona  fide  contest  involved  as  to  the  particular  use  for 
which  the  land  has  the  greater  value,  we  do  not  see  any  objection  which 
the  government  could  interpose  against  an  amicable  settlement  of  the 
difficulty  by  a  division  of  the  land  between  the  rival  claimants.  Cer- 
tainly there  was  not  anything  done  by  these  parties  which  precluded  the 
government  from  making  an  investigation  of  the  land  to  determine  its 
character. 

(b)     Again,  appellants  say:     "A  secret  agreement  by  one  to  secure 

in  his  own  name  title  to  public  land  for  the  use  and  benefit  of  another, 

and  to  then  convey  to  that  other,  is  against  public  policy,  illegal  and 

unenforceable."     Stated  thus  broadly,  the  premise  is  not  true.     It  is 

W.  &  M.— 35 


546  Water  and  Mineral  Cases.  [Montana 

only  true  when  the  contract  deals  with  a  character  of  entry  with  respect 
to  which  the  statutes  of  the  United  States  prohibit  such  a  contract. 
Lamb  v.  Davenport,  18  Wall.  307,  21  L.  Ed.  759;  Barnes  v.  Poirier,  64 
Fed.  14,  12  C.  C.  A.  9;  Webster  v.  Luther,  163  U.  S.  331,  16  Sup.  Ct. 
963,  41  L.  Ed.  179.  Pursuant  to  the  agreement  under  consideration, 
White  made  his  entry  and  procured  patent  to  the  middle  and  west  forties 
by  virtue  of  a  soldier's  additional  homestead  scrip.  A  contract  by  the 
entry  man  under  such  scrip  entry,  to  convey  title  to  a  portion  of  the  land 
when  patent  issues,  does  not  contravene  any  public  policy,  is  not  pro- 
hibited by  law,  and  wilt  be  enforced.  Webster  v.  Luther,  supra;  Barnes 
v.  Poirier,  supra;  Tecumseh  State  Bank  v.  Maddox,  4  Okla.  583,  46  Pac. 
563;  Waring  v.  Loomis,  supra;  Hardesty  v.  Service,  supra.  In  Keely 
v.  Gregg,  33  Mont.  216,  82  Pac.  27,  83  Pac.  222,  this  court  expressed  the 
opinion  that  a  contract  of  the  character  of  the  one  now  before  us  is  in- 
valid. The  question  was  not  before  the  court,  and  the  opinion  expressed 
was  dictum.  However,  on  rehearing  (33  Mont.  227,  82  Pac.  27,  83  Pac. 
222)  the  court  withdrew  its  remarks  and  left  the  question  open. 

(c)  But  it  is  insisted  that  the  enforcement  of  a  contract  of  this 
character  makes  possible  the  evasion  of  the  federal  statute,  by  permitting 
one  who  is  not  himself  a  qualified  entry  man  to  secure  title  to  govern- 
ment land  by  the  indirect  method  of  having  patent  issued  to  one  who  is  a 
qualified  entry  man,  but  who  secures  the  patent  under  contract  to  convey 
the  land  to  the  former.  Without  deciding  the  question,  we  may  agree 
with  counsel  that,  if  it  appeared  that  Murray  was  not  qualified  for  any 
reason  to  secure  patent  to  the  middle  forty  as  agricultural  land,  then 
this  contract  by  which  White  agreed  to  secure  it  for  him  is  not  en- 
forceable ;  but  there  is  not  any  presumption  that  a  contract  is  fraudulent 
and  void.  Defendants,  having  the  burden,  were  required  to  allege  and 
prove  that  Murray  was  not  qualified  to  take  patent  to  the  middle  forty 
as  agricultural  land,  and,  having  failed  to  make  such  allegation  or  proof, 
they  failed  to  sustain  this  contention.  The  case  of  Kreamer  v.  Earl,  91 
Cal.  112,  27  Pac.  735,  cited  by  counsel  for  appellants,  is  not  inconsistent 
with  this  theory,  for  there  it  appeared  affirmatively  that  the  contract 
involved  provided  for  securing  to  one  person  a  quantity  of  public  land  in 
excess  of  the  amount  allowed  under  the  statute. 

Finally,  it  is  urged  that  the  trial  court  erred  in  fixing  the  amount  which 
Murray  should  pay  to  White  as  a  condition  to  White's  transferring  the 
middle  forty.  The  contract  provides  that  Murray  shall  pay  to  White 
one-half  of  the  expense  incurred  by  White  in  securing  patent  to  the  west 
and  middle  forties.  It  appears  that  at  the  time  the  contract  was  entered 
into  the  land  was  involved  in  a  contest  between  the  McCrimmon  and 
White  applications ;  that  it  was  neccessary  for  White  to  have  the  services 


1911]  Mukkay  v.  White  et  al.  547 

of  an  attorney  to  aid  him  in  procuring  patent,  aad  that  he  arranged 
with  his  attorney  to  perform  the  necessary  services  upon  a  contingent  fee 
of  one-third  the  value  of  the  west  forty.  Appellants  now  contend  that, 
since  the  west  forty  was  shown  to  have  a  value  of  $50,000  for  town-site 
purposes,  and  one-third  of  this  value  inures  to  the  benefit  of  the  attorney, 
Murray  should  pay  one-half  of  that  fee,  or  $8,333.33.  However  conclu- 
sive the  agreement  between  White  and  his  attorney  may  be  upon  the 
parties  to  it,  Murray,  who  was  not  a  party,  cannot  be  bound.  From  the 
very  nature  of  the  case,  it  was  impossible  for  Murray  and  White  to  antici- 
pate the  exact  amount  of  expense  which  would  be  incurred  in  securing 
patent,  but,  in  the  absence  of  a  fixed  amount,  Murray's  contract  to  pay 
one-half  of  the  expense  must  be  held  to  mean  one-half  of  the  reasonable 
expense,  and  not  one-half  of  such  expense  as  White  might  arbitrarily 
incur.  1  Page  on  Contracts,  §§  2.7,  28.  This  was  the  view  entertained 
by  the  trial  court,  and  upon  this  basis  the  court  ordered  Murray  to  pay 
to  White  $1,130. 

We  do  not  find  that  any  reversible  errors  were  committed.    The  judg- 
ment and  order  are  affirmed. 

Affirmed. 

BRANTLY  and  SMITH,  JJ.,  concur. 


548 


Water  and  Mineral  Cases.        [Pennsylvania 


BAN1TAN  v.  GRAEFF  et  al. 

[Supreme  Court  of  Pennsylvania,  July  21,   1893.] 

186  Pa.  St.  648.  40  Atl.  805. 

1.    Mining  Lease — Exhaustion  of  Mineral. 

Lessee  will  not  be  required  to  pay  the  minimum  royalty  under  a  lease  providing 
for  production  of  a  certain  amount  of  coal  "unless  prevented  from  doing  so  by 
any  unavoidable  accident  or  occurrences  beyond  their  control"  where  the  coal 
has  become  exhausted. 

Action  to  recover  rent  or  royalty  under  mining  lease.  Judgment  for 
defendants.    Affirmed. 


CASE   NOTE. 

Effect  of  the  Nonexistence  or  Ex- 
haustion of  the  Mineral  on  Gas  or 
Oil   Leases. 

I.     The  General  Rule,  548. 
II.     The  Existence  of  the  Min- 
eral Is  Presumed,  549. 

III.  No  Particular  Amount  Pre- 

sumed, 550. 

IV.  Burden  op  Proof,  550. 

V.     Absolute       Covenant       to 
Pat,  551. 
VI.     Effect    of    Possession,  552. 
VII.     Nonexistence     or    Exhaus- 
tion of    Mineral    a     De- 
fense  to  Action  for  Roy- 
alty, 553. 
VIII.     Effect   of   Value    of    Min- 
eral, 556. 
IX.     Nonexistence     on     Adjoin- 
ing Property,  557. 

I.   The    General    Rule. 

Mining  leases  commonly  include,  in 
addition  to  the  usual  undertaking  to  pay 
for  what  may  be  actually  mined,  a 
covenant  that  some  fixed  or  ascertainable 
sum,  at  least,  shall  be  annually  paid. 
These  covenants  run  all  the  same  or  to 
the  same  effect.  They  may  be  divided 
into  two  classes :      ( 1 )    Those  which  re- 


quire the  payment  of  rent  irrespective 
of  products,  (2)  those  which  require  that 
upon  failure  to  take  out  a  stipulated 
quantity,  royalty  with  respect  thereto 
shall  nevertheless  be  paid.  Where  the 
covenant  is  of  the  first  class,  the  ten- 
ant is  liable  for  the  rent,  even  if  noth- 
ing could  be  got  by  mining.  Where  the 
covenant  is  of  the  second  class,  his 
obligation  is  to  pay  for  the  stipulated 
quantity  whether  mined  or  not,  not 
whether  it  exists  or  not.  He  contracts 
for  promptitude  and  thoroughness,  not 
for  the  productiveness  of  the  mine. 
Ridgely  v.  Conewago  Oil  Co.,  53  Fed. 
988     (1893). 

Mining  leases  ccontaining  a  covenant 
for  the  payment  of  a  minimum  rent  or 
royalty  may  be  divided  into  two  gen- 
eral classes:  (1)  Those  which  require 
its  payment  as  a  dead  rent,  irrespective 
of  products,  and  (2)  those  which  require 
the  mining  of  a  stipulated  amount  of 
ore,  or  upon  failure  to  do  so,  payment 
of  the  royalty  upon  it.  Where  the 
covenant  is  of  the  first  class,  the  lessee 
is  liable  to  pay  this  minimum  royalty 
as  he  would  rent,  even  if  no  ore  existed. 
Where  the  covenant  is  of  the  second 
class  it  has  been  construed  generally  as 
an  obligation  to  pay  for  the  stipulated 
amount  of  ore,  whether  mined  or  not — 
not  whether  it  existed  or  not — that  is 
that    the    lessee    contracts    for    diligence 


1898] 


Banjstan  v.  Graeff  et  al. 


549 


For  appellant — George  M.  Roads. 

For  appellees — John  W.  Ryon. 

GREEN,  J.  There  was  no  absolute  obligation  in  the  lease  in 
question  to  pay  a  fixed  royalty  or  rental  throughout  the  whole  period  of 
the  term,  as  there  was  in  Timlin  v.  Brown,  158  Pa.  St.  606,  28  Atl.  236, 
and  therefore  the  liability  of  the  lessees  must  be  measured  by  the  ordi- 
nary reading  of  the  terms  of  the  contract.  The  sixth  clause  of  the  lease 
provides  that  the  lessees  shall  mine  and  ship  each  year  as  much  coal  as 


and  promptitude  in  mining  but  not  for 
the  productiveness  of  the  mine.  Diamond 
Iron  Min.  Co.  v,  Buckeye  Iron  Min.  Co., 
70  Minn.  500,  19  Mor.  Min.  Rep.  197, 
73  N.  W.  507    (1897). 

Failure  to  surrender  under  lease  pro- 
viding for  prospecting  for  ore  and  that 
if  not  surrendered  by  a  certain  day  it 
be  deemed  ore  was  found,  is  not  conclu- 
sive, but  casts  upon  the  lessee  burden  of 
proving  no  ore  existed.  McCahan  v. 
Wharton,  121  Pa.  St.  424,  16  Mor.  Min. 
Rep.  239,  15  Atl.  615    (1888). 

Where  lease  provides  for  drilling  at 
least  two  wells,  lessee  cannot  abandon 
the  same  after  drilling  one  well  which 
proved  unproductive.  Ahrns  v.  The 
Chartiers  Valley  Gas  Co.,  188  Pa.  St. 
249,  19  Mor.  Min.  Rep.  584,  41  Atl.  739 
(1898). 

In  order  to  sustain  action  for  dam- 
ages by  lessor  against  lessee  for  failure 
to  sink  well  and  develop  property,  it 
must  be  shown  that  oil  or  gas  existed 
on  the  premises.  Duff  v.  Bailey,  29  Ky. 
L.  Rep.  919,  96  S.  W.  577    (1906). 

Where  money  is  paid  under  lease 
which  presupposed  existence  of  mineral 
which  was  thereafter  found  not  to  exist, 
it  cannot  be  recovered  back;  having 
been  paid  to  prevent  the  forfeiture  of 
the  lease.  Bloomfield  Coal  &  Min.  Co. 
v.  Tidrick,  99  Iowa  83,  68  N.  W.  570 
(1896). 

II.  The   Existence  of  the   Mineral   Is 
Presumed. 

In     mining,  oil  or  gas  lease  upon  a 
royalty  there  is  an  implied  covenant  the 


mineral  contemplated  does  in  fact  exist 
in    the    land. 

England. — Lord  Clifford  v.  Watts,  L.  R. 
5  C.  P.  577  ( 1870)  ;  Gowan  v.  Christie,  L. 
R.  2H.  L.  (Sc.)  273,  5  Moak  114,  8  Mor. 
Min.  Rep.  688    (1873)  ;  Jones  v.  Shears, 

7  C.    &   P.    346,    32    Eng.    C.   L.    649,    8 
Mor.  Min.  Rep.   333    (1836). 

Alabama. — Brooks  v.  Cook,  135  Ala. 
219,  22  Mor.  Min.  Rep.  456,  34  So.  960 
(1902). 

Colorado. — Colorado  Fuel  &  Iron  Co. 
v.  Pryor,  25  Colo.  540,  19  Mor.  Min. 
Rep.  544,  57  Pac.  51  (1898);  Caley  v. 
Portland,  18  Colo.  App.  390,  22  Mor.  Min. 
Rep.  595,  71  Pac.  891    (1903). 

Florida. — Hiller  v.  Walter  Ray  &  Co. 
(Fla.),  52  So.  623  (1910). 

Illinois.— Walker  v.  Tucker,  70  111.  527, 

8  Mor.  Min.  Rep.  672    (1873). 
Iowa.— Reed  v.  Beck,  66  Iowa  21,  23  N. 

W.  159  (1885)  ;  Fritzler  v.  Robinson,  70 
Iowa  500,  17  Mor.  Min.  Rep.  105,  31  N. 
W.  61  (1886);  Bloomfield  Coal  &  Min. 
Co.  v.  Tidrick,  99  Iowa  83,  68  N.  W. 
,  570    (1896). 

Kentucky. — Given's  Executors  v.  Prov- 
idence Coal  Co.,  22  Ky.  Law  R.  1217, 
60  S.  W.  304  (1901);  Duff  v.  Bailey, 
29  Ky.  L.  Rep.  919,  96  S.  W.  577  (1906). 

Michigan. — Gribben  v.  Atkinson,  64 
Mich.  651,  15  Mor.  Min.  Rep.  428,  31 
N.  W.  570  (1887)  ;  Blake  v.  Lobb's  Es- 
tate, 110  Mich.  608.  18  Mor.  Min.  Rep. 
462,   68   N.   W.   427    (1896). 

Ohio.— Cook  v.  Andrews,  36  Ohio  St. 
174,  3  Mor.  Min.  Rep.  171  (1880); 
Brick  Company  v.  Pond,  38  Ohio  St. 
65    (1882). 


550 


Water  and  Mineral  Cases.        [Pennsylvania 


will  produce  $5,000  yearly  at  the  rents  designated,  "unless  prevented 
from  doing  so  by  any  unavoidable  accident  or  occurrences  beyond  their 
control."  If,  therefore,  the  coal  on  the  premises  became  exhausted  be- 
fore the  end  of  the  term,  this  would  be  an  occurrence  beyond  their 
control,  which  would  absolutely  prevent  them  from  taking  out  the  quan- 
tity necessary  to  make  up  the  annual  rental  of  $5,000.  The  affidavit  of 
defense  positively  avers  that  the  lessees  "mined  out  all  the  coal  from 
the  Joseph  Keffer  and  all  of  the  Lykens  Valley  measures  in  the  Nancy 
Kinnear,  so  that  no  available  or  workable  coal  was  left  in  either  of  said 
tracts  in  the  veins  referred  to;  that  many  of  the  veins  were  faulty,  and 


Pennsylania. — Kemble  Iron  Co.  v. 
Scott,  15  W.  N.  C.  (Pa.)  220  (1884); 
Muhlenberg  v.  Henning,  116  Pac.  St.  138, 
15  Mor.  Min.  Eep.  423,  9  Atl.  144 
(1887);  Garman  v.  Potts,  135  Pa.  St. 
506,  16  Mor.  Min.  Rep.  108,  19  Atl. 
1071,  26  W.  N.  C.  305  (1890),  and  see 
cases  cited  in  VII,  post. 

Lease  for  the  purpose  of  exploring  for, 
mining,  taking  out  and  removing  there- 
from the  merchantable  iron  ore  which 
is  or  which  hereafter  may  be  found  on, 
in  or  under  said  land  at  a  fixed  rental, 
presupposes  the  existence  of  ore  and 
upon  it  appearing  that  no  such  ore  was 
to  be  found,  the  purpose  of  the  lease 
is  gone  and  the  lessees  should  not  be 
changed  with  the  consideration.  Gribben 
v.  Atkinson,  64  Mich.  651,  15  Mor.  Min. 
Rep.  428,  '31  N.  W.  570  (1887)  ;  Blake 
v.  Lobb's  Estate,  110  Mich.  608,  18 
Mor.  Min.  Rep.  462,  68  N.  W.  427,  3 
Detroit  L.  N.  510    (1896). 

Mining  lease  granting  right  to  all 
mineral  in  certain  lands  for  a  certain 
length  of  time,  the  lessees  binding  them- 
selves to  produce  a  certain  amount 
and  pay  royalty  thereon,  contains  an 
implied  covenant  that  the  mineral  exists, 
and  if  it  be  found  not  to  exist,  the  lessee 
will  not  be  held  liable  for  the  royalty. 
Brooks  v.  Cook,  135  Ala.  219,  22  Mor. 
Min.  Rep.  456,  34  So.  960    (1902). 

A  total  failure  of  consideration  from 
mutual  mistake  occurs  where  both  par- 
ties believing  ore  to  exist  enter  into 
a  lease  and  it  is  then  found  none  exists. 
In  such  case  relief  may  be  had  in  equity. 


Fritzler  v.  Robinson,  70  Iowa  500,  17 
Mor.  Min.  Rep.  105,  31  N.  W.  61 
(1886). 

Where  the  covenant  is  "to  mine  or 
pay  for  two  thousand  tons  per  year"  it 
is  no  defense  to  an  action  thereon  that 
sufficient  ore  to  produce  that  amount 
did  not  exist  in  the  land.  Where  the 
existence  of  the  ore  was  at  the  time  of 
the  execution  of  the  lease  on  both  sides 
regarded  as  problematical,  the  lessee 
runs  the  risk  of  finding  the  ore  and  is 
bound  by  his  agreement  to  pay  the  des- 
ignated rent.  Wharton  v.  Stouten- 
burgh,  46  N.  J.  L.   151    (1884). 

III.  No  Particular  Amount  Presumed. 

No  covenant  of  any  particular  pro- 
ductive capacity  is  implied  in  the  lease 
of  an  oil  well.  Clark  v.  Babcock,  23 
Mich.  164,  8  Mor.  Min.  Rep.  599  (1871). 
Lease  of  certain  property  including 
"six  salt  wells,  tools,  and  fixtures  for 
the  same"  does  not  imply  covenant  on 
the  part  of  the  lessor  that  there  are  on 
said  premises  six  salt  wells  of  any  par- 
ticular productive  capacity  or  suitable 
for  the  purposes  for  which  they  are 
leased.  Clifton  v.  Montayia,  40  W.  Va. 
207,  21  S.  E.  858,  52  Am.  St.  Rep.  872, 
■  33  L.  R  A.  449    (1895). 

IV.    Burden  of  Proof. 

In  a  lease  of  land  for  mining  purposes 
the  failure  to  find  the  specified  mineral 
and  the  character  of  the  search  made 
for  it,  being  more  within  the  knowledge 
of  the  lessees,  are  matters  of  defense  in 


1898] 


Bannan  v.  Geaeff  et  al. 


551 


large  sums  of  money  were  expended  in  cutting  through  the  faults,  and 
in  driving  tunnels,  and  in  prosecuting  their  investigation  in  the  veins 
aforesaid,  until  all  the  coal  was  mined  out  and  shipped  away  and  paid 
for  by  the  lessees."  The  affidavit  further  alleges  "that  during  the  time 
they  worked  and  mined  coal  in  said  lands  they  paid  an  annual  rental  * 
of  more  than  $5,000,  and  they  continued  such  annual  payments  until 
the  coal  as  aforesaid  was  exhausted ;  and  they  therefore  deny  that  there 
is  anything  due  and  payable  on  account  of  said  lease  to  the  said  Francis 
B  Bannan,  or  any  other  person  or  persons."  These  averments  are, 
of  course,  to  be  taken  as  verity;  and,  if  they  are  true,  the  lessees  have 


an  action  for  royalties.  Hiller  v.  Wal- 
ter Ray  &  Co.  (Fla.),  52  So.  623 
(1910)  ;  Cook  v.  Andrew,  36  Ohio  St.  174, 
3  Mor.  Min.  Rep.  171  (1880)  ;  McCahan 
v.  Wharton,  121  Pa.  St.  424,  16  Mor. 
Min.  Rep.  239,  15  Atl.  615    (1888). 

V.  Absolute  Covenant  to   Pay. 

Where  the  covenant  is  to  pay  a  cer- 
tain fixed  amount  annually,  or  to  get 
out  a  certain  fixed  amount  annually  the 
lessee  is  liable  on  his  covenant  notwith- 
standing the  fact  that  the  mine  has 
become  exhausted.  Marqui:s  of  Bute 
v.  Thompson,  13  M.  &  W.  487,  8  Mor. 
Min.  Rep.  371  (1844);  McDowell  v. 
Hendrix,  67  Ind.  513,  9  Mor.  Min.  Rep. 
96  (1879);  Phillips  v.  Jones,  9  Sim. 
519,  8  Mor.  Min.  Rep.  344  (1839); 
Jervis  v.  Tomkinson,  1  H.  &  N.  195 
(1856). 

The  failure  to  find  the  mineral  will 
not  defeat  the  lessee's  positive  covenant 
to  pay  rent.  Rex  v.  The  Inhabitants  of 
Redworth,  8  East  387  (1807);  Jowett 
v.  Spencer,  1  Exch.  647,  17  L.  J.  Exch. 
367,  2  Mor.  Min.  Rep.  499   (1847). 

Where  the  lease  is  taken  at  a  certain 
dead  rent,  the  lessee  is  bound  to  pay  it 
whether  he  works  the  mine  or  not.  Jegon 
v.  Vivian,  L.  R.  6  Ch.  742,  40  L.  J.  Ch. 
389,  8  Mor.  Min.  Rep.  628    (1871). 

Under  contract  or  lease  of  a  colliery 
which  has  become  not  worth  working, 
equity  will  relieve  from  payment  of  roy- 
alty upon  lessee  paying  for  the  remain- 
ing coal.  Smith  v.  Morris,  2  Bro.  Ch. 
311,  8  Mor.  Min.  Rep.  317   (1788). 


In  the  lease  of  a  mine  where  lessee 
agreed  to  pay  a  certain  royalty  upon 
its  products,  there  was  a  further  provis- 
sion  that  "in  case  the  royalty  due  and 
payable  to  the  parties  of  the  first  part 
according  to  the  above  rates,  shall  in 
any  year  fall  below  the  sum  of  one  thou- 
sand dollars,  then  the  parties  of  the 
second  part  shall  pay  to  the  parties  of 
the  first  part  such  additional  sum  of 
money  as  shall  make  the  royalty  for 
such  year  amount  to  the  sum  of  one 
thousand  dollars,  which  sum  shall  be 
held  and  taken  to  be  the  royalty  for 
that  year,  provided  always  that  if  suf- 
ficient ores  cannot  be  found  to  allow  said 
minimum  payment  and  if  said  party 
of  the  second  part  shall  in  consequencce 
thereof  fail  to  pay  said  minimum  sum 
of  one  thousand  dollars  yearly,  then  said 
party  of  the  second  part  shall,  if  re- 
quired by  said  parties  of  the  first  part, 
relinquish  this  lease  and  the  privileges 
hereby  granted,  and  the  same  shall  cease 
thereupon."  In  construing  this  lease  the 
court  say:  "Looking  at  all  the  provisions 
of  the  lease,  it  is  clear  that  the  defend- 
ant engaged  to  pay  as  rent  in  each  year 
the  royalties  fixed  in  the  lease,  and  if 
in  any  year  the  royalties  fall  below  the 
sum  of  one  thousand  dollars,  it  was  to 
make  up  the  deficit  so  that  the  latter 
sum  should  in  any  event  be  paid  an- 
nually as  rent.  The  defendant  took  the 
chance  of  a  failure  to  find  ore  in  suf- 
ficient quantities  to  justify  working  the 
mines,  and  the  plaintiffs  took  the  chance 
of  not  obtaining  more  than  one  thousand 


552 


Water  and  Mineral  Cases.        [Pennsylvania 


paid  all  the  money  which  they  were  required  to  pay  under  the  terms 
of  the  contract.  In  Iron  Co.  v.  Scott,  15  Wkly.  Notes  Cas.  220,  the 
lessee  covenanted  to  pay  fifty  cents  per  ton  of  ore  mined,  and  that  after 
the  first  year  the  rent  should  not  be  less  than  $10,000,  whether  ore  to 
that  extent  was  mined  or  not.  The  defendant  offered  to  prove  on  the 
trial  that  the  premises  did  not  contain  the  necessary  quantity  of  ore, 
fit  for  use  in  a  furnace,  to  yield  the  amount  of  royalty  to  be  paid,  and  we 
decided  that  this  was  a  good  defense.  Gordon,  J.,  delivering  the  opin- 
ion, said:  "Hence  the  material  question  was,  could  the  ore  found  in 
the  leased  premises,  under  the  present  methods  of  making  iron,  be  prop- 


dollars  annually  during  the  existence  of 
the  lease  for  the  use  of  the  buildings 
and  fixtures  that  had  cost  them  more 
than  sixty  thousand  dollars.  To  secure 
the  payment  annually  of  at  least  one 
thousand  dollars,  the  right  was  reserved 
to  the  plaintiffs  to  terminate  the  lease 
if  the  company  failed  in  any  year  to  pay 
that  sum  as  rent,  and  that  the  company 
might  get  the  advantage  of  any  devel- 
opments indicating  that  the  leased  prem- 
ises were  of  substantial  value,  the  exclu- 
sive privilege  was  reserved  to  it  of  pur- 
chasing them  at  any  time  while  the 
lease  remained  in  force.  Lehigh  Zinc 
&  Iron  Co.  v.  Bamford,  150  U.  S.  665, 
14  Sup.  Ct.  219,  37  L.  Ed.  1215  (1893), 
Bamford  v.  Lehigh  Zinc  &  Iron  Co.,  33 
Fed.    677     (1887). 

Where  a  lease  contains  a  covenant 
to  pay  a  certain  minimum  rent  absolutely 
the  exhaustion  of  the  mine  is  immaterial. 
Watson  Coal  &  Min.  Co.  v.  Casteel,  73 
Ind.  296,  9  Mor.  Min.  Rep.  130    (1881). 

Where  parties  having  prospected  cer- 
tain ground  take  a  lease  thereon  under- 
taking for  a  certain  royalty,  the  maxi- 
mum and  minimum  thereof  being  fixed, 
for  the  period  of  ten  years,  to  mine  the 
property,  it  amounts  to  a  sale  of  the 
mineral  in  place,  and  the  lessees  are 
bound  to  pay  the  minimum  rent  although 
it  may  not  be  profitable  to  work  the 
property  after  the  end  of  the  eighth 
year.  The  case  is  distinguished  from 
one  where  parties  dealing  under  a  mutual 
mistake  as  to  the  existence  of  mineral 
at  the  time  the  lease  was  made  after- 


wards ascertained  that  no  mineral  ex- 
isted. Timlin  v.  Brown,  158  Pa.  St. 
606,   28   Atl.    236    (1893). 

One  who  accepts  an  oil  or  gas  lease 
with  stipulation  to  pay  a  monthly  rental 
until  a  well  is  completed  or  until  the 
expiration  of  a  certain  fixed  time,  is 
bound  to  pay  such  rental  although  he 
does  not  within  such  term  enter  upon 
the  land  and  complete  such  well,  unless 
he  was  prevented  from  doing  so  by  the 
lessor,  and  not  by  mere  personal  default. 
Lawson  v.  Kirchner,  50  W.  Va.  344,  21 
Mor.  Min.  Rep.  683,  40  S.  E.  344  (1901). 

It  is  undoubtedly  competent  for  the 
lessee  to  bind  himself  absolutely  to  the 
payment  of  a  stipulated  amount  without 
reference  to  the  source  from  which  he 
expected  to  derive  the  means  of  payment, 
and  to  agree  that  the  obligation  to  pay 
should  have  all  the  virtue  and  charac- 
teristics of  an  agreement  to  pay  rent. 
Lawson  v.  Williamson  Coal  &  Coke  Co., 
61  W.  Va.  669,  57  S.  E.  258    (1907). 

Where  a  lease  contains  an  absolute 
covenant  to  pay  a  certain  rent,  and  pro- 
vision for  terminating  it  upon  exhaus- 
tion, the  lessee  is  bound  to  pay  until  he 
terminates  the  lease  although  the  mineral 
is  in  fact  exhausted.  Palmer  v.  Wall- 
bridge,  15  Can.  Sup.  Ct.  650  (1888). 

VI.    Effect    of    Possession. 

Under  a  lease  containing  provision 
"if  no  coal  is  found  under  said  land  and 
this  lease  is  abandoned,  then  said  pay- 
ments are  not  to  be  made,"  the  lessee 
is  liable  for  the  rent  for  so  long  as  he 


1898] 


Bannan  v.  Geaeff  et  al. 


553 


erly  used  for  the  purpose  indicated?  If  it  could  be  so  used,  and  there 
was  enough  of  it,  the  plaintiffs  had  a  right  to  require  the  full  perform- 
ance of  the  contract.  If,  however,  there  proved  to  be  a  failure  in  either 
of  these  particulars,  then  was  the  defendant  released  from  payment 
in  whole  or  in  part,  as  the  case  might  be."  In  Muhlenberg  v.  Henning, 
116  Pa.  St.  138,  15  Mor.  Min.  Rep.  423,  9  Atl.  144,  our  la*e  Brother 
Clark,  in  a  very  clear  and  exhaustive  opinion,  held  that  there  was  no 
liability  on  the  part  of  the  lessee  to  pay  a  fixed  minimum  royalty  if  there 
was  no  ore  on  the  premises  to  mine,  or  if  the  ore  that  was  there  was 
not  of  the  kind  that  was  to  be  taken  out  under  the  contract.     It  was  an 


continues  in  possession  of  the  property, 
notwithstanding  no  coal  may  have  been 
found.  McDowell  v.  Hendrix,  67  Ind. 
513,  9  Mor.  Min.  Rep.  96  (1879);  Le- 
high, etc.,  Coal  Co.  v.  Wright,  177  Pa. 
St.  387,  33  Atl.  919    (1896). 

Under  provision  of  a  lease  that  lessee 
should  pay  fifty  dollars  a  month  for 
the  privilege  of  mining  and  hoisting  ore 
through  a  shaft,  and  also  that  lessee 
should  produce  a  certain  minimum  quan- 
tity or  pay  a  certain  minimum  royalty, 
he  is  liable  for  the  fifty  dollars  a  month 
if  he  continues  to  use  the  shaft,  although 
the  mineral  has  become  exhausted.  Len- 
nox v.  Vandalia  Coal  Co.,  158  Mo.  473, 
59   S.  W.   242    (1900). 

Under  a  lease  giving  right  of  possession 
and  mining,  with  provision  for  termina- 
tion thereof  by  lessee,  the  lessee  is  liable 
for  rent  so  long  as  he  continues  in  pos- 
session of  the  property,  whether  mineral 
exists  or  not.  Clark  v.  Midland  Blast 
Furnace  Co.,  21  Mo.  App.  58  (1886); 
Lennox  v.  Vandalia  Coal  Co.,  66  Mo. 
App.   560    (1896). 

VII.    Nonexistence    or    Exhaustion    of 

Mineral   a   Defense  to  Action 

for  Royalty. 

The   fact  that  no  mineral   existed   in 

the  land  at  the  time  the  lease  was  made, 

or   that   it  has   become   exhausted,   is   a 

good  defense  to  an  action  for  the  royalty 

reserved. 

England.— Lord  Clifford  v.  Watts,  L.  R. 
5  C.  P.  577    (1870). 

United   States. — Ridgely   v.    Conewago 
Company,   53    Fed.    988    (1893). 


Alabama. — Gaines  v.  Virginia  &  A. 
Coal  Co.,  124  Ala.  394,  20  Mor.  Min.  Rep. 
393,  27  So.  477    (1900). 

Colorado. — Colorado  Fuel  &,  Iron  Co. 
v.  Pryor,  25  Colo.  540,  19  Mor.  Min. 
Rep.  544,  57  Pac.  51  (1898);  Caley  v. 
Portland,  18  Colo.  App.  390,  22  Mor. 
Min.  Rep.  595,  71  Pac.  891    (1903). 

Florida. — Hiller  v.  Walter  Ray  &  Co. 
(Fla.),   52   So.   623    (1910). 

Indiana. — Indianapolis  Gas.  Co.  v.  Te- 
ters,  15  Ind.  App.  475,  18  Mor.  Min. 
Rep.  391,  44  N.  E.  549  (1896);  Moon 
v.  Pittsburg  Plate  Glass  Co.,  24  Ind. 
App.  34,  56  N.  E.  108    (1900). 

Iovoa. — Fritzler  v.  Robinson,  70  Iowa 
500,  17  Mor.  Min.  Rep.  105,  31  N.  W. 
61  (1886);  Carr  v.  Whitebreast  Fuel 
Co.,  88  Iowa  131,  55  N.  W.  205  (1893). 
Michigan. — Gribben  v.  Atkinson,  64 
Mich.  651,  15  Mor.  Min.  Rep.  428,  31 
N.  W.  570  (1887)  ;  Blake  v.  Lobb's  Es- 
tate, 110  Mich.  608,  18  Mor.  Min.  Rep. 
462,  68  N.  W.  427  (1896)  ;  Hewitt  Iron 
Min.  Co.  v.  Dessau  Co.,  129  Mich.  590, 
22  Mor.  Min.  Rep.  Ill,  89  N.  W.  365, 
8   Detroit  L.   N.   1093    (1902). 

Minnesota. — Diamond  Iron  Min.  Co.  v. 
Buckeye  Iron  Min.  Co.,  70  Minn.  500,  19 
Mor.  Min.  R«p.  197,  73  N.  W.  507 
(1897). 

Ohio. — Cook  v.  Andrews,  36  Ohio  St. 
174,  3  Mor.  Min.  Rep.  171  (1880); 
Brick  Co.  v.  Pond,  38  Ohio  St.  65  (1882)  ; 
Stahl  v.  Van  Vleck,  53  Ohio  St.  136,  18 
Mor.  Min.  Rep.  231,  41  N.  E.  31  (1895). 
Pennsylvania. — Muhlenberg  v.  Hen- 
ning, 116  Pa.  St.  138,  15  Mor.  Min.  Rep. 


554 


Water  and  Mineral  Cases.        [Pennsylvania 


iron-ore  lease,  in  which  it  was  provided  that  the  lessee  should  mine  and 
carry  away  at  least  1,500  tons  of  ore  each  year  during  the  continuance  of 
the  lease,  "or  in  default  thereof  pay  a  royalty  of  $525  annually."  An 
action  being  brought  to  recover  the  minimum  royalty  for  two  years,  the 
defendants  filed  affidavits  of  defense,  saying  that  they  had  entered  upon 
the  premises,  and  had  expended  $3,000  in  buildings  and  machinery,  and 
had  prosecuted  the  work  of  mining  for  ore  with  due  diligence  for  nine 
months,  but  were  unable  to  find  ore  in  sufficient  quantity  to  enable  them 
to  carry  out  their  contract,  and  that  the  ore  they  did  find  was  not  of  a 
merchantable  character.  In  the  opinion,  Justice  Clark  said:  "If,  how- 
ever, it  was  established  by  actual  and  exhaustive  search  that  at  the 
time  of  the  contract  there  was  in  fact  no  ore  in  the  land,  or  no  ore  of  the 


423,  9  Atl.  144  (1887)  ;  Timlin  v.  Brown, 
158  Pa.  St.  606,  28  Atl.  236  (1893); 
Shellar  v.  Shivers,  171  Pa.  St.  569,  18 
Mor.  Min.  Rep.  260,  33  Atl.  95  (1895)  ; 
Double  v.  Union  Heat,  etc.,  Co.,  172  Pa. 
St.  388,  18  Mor.  Min.  Rep.  327,  33  Atl. 
694  (1896);  Boyer  v.  Fulmer,  176  Pa. 
St.  282,  35  Atl.  235  (1896);  Williams 
v.  Guffy,  178  Pa.  St.  342,  18  Mor.  Min. 
Rep.  478,  35  Atl.  875  (1896);  Bannan 
v.  Graeff,  principal  case. 

Washington. — Adams  v.  Washington 
Brick,  etc.,  Co.,  38  Wash.  243,  80  Pac. 
446  (1905).  And  see  cases  cited  in  II 
supra,  this  note. 

Under  a  lease  giving  lessee  the  right 
to  mine  upon  certain  royalty,  the  lessees 
binding  themselves  to  produce  a  certain 
tonnage,  there  is  an  implied  covenant 
that  mineral  be  found,  and  if  after  dili- 
gent search  it  appears  that  at  the  time 
the  contract  was  made  there  was  no 
mineral  in  the  land,  the  lessee  cannot 
be  held  liable  for  the  royalty.  Brooks 
v.  Cook,  135  Ala.  219,  22  Mor.  Min.  Rep. 
456,  34  So.  960    (1902). 

Upon  entering  into  contract  to  mine 
certain  lands,  it  is  presumed  the  parties 
contemplated  the  existence  of  ore  in 
paying  quantities,  and  if  this  be  not 
found  after  diligent  search,  the  lessee 
will  not  be  required  to  pay  the  royalty, 
as  to  require  him  to  do  so  would  require 
him  to  bear  a  burden  from  which  he 
derives  no  benefit.    Colorado  Fuel  &  Iron 


Co.  v.  Pryor,  25  Colo.  540,  19  Mor.  Min. 
Rep.  544,  57  Pac.  51   (1898). 

Where  the  purpose  of  a  contract  is 
the  mining  of  certain  rock,  a  failure 
upon  proper  endeavor  to  find  such,  is 
a  good  defense  in  an  action  for  royalties, 
in  the  absence  of  agreements  to  the 
contrary.  Hiller  v.  Walter  Ray  &  Co. 
(Fla.),   52   So.   623    (1910). 

Where  lease  of  land  for  mining  pur- 
poses contemplates  the  existence  of  the 
mineral  to  be  mined,  a  provision  for  a 
minimum  royalty  in  gross  "whether  the 
mining  is  carried  on  or  not"  relates  to 
a  failure  to  mine  and  not  to  a  failure 
to  find  the  required  mineral.  Hiller  v. 
Water  Ray  &  Co.  (Fla.),  52  So.  623 
(1910). 

Under  covenant  for  payment  of  speci- 
fied rental  for  "each  year  in  advance 
for  every  well  from  which  the  gas  is 
used  off  the  premises,"  action  cannot 
be  maintained  for  rent,  when  the  well 
failed  or  it  became  impracticable  to  use 
the  gas  therefrom,  as  thereby  the  lessee 
was  released  from  all  liability.  Indian- 
apolis Gas  Co.  v.  Teters,  15  Ind.  App. 
475,  18  Mor.  Min.  Rep.  391,  44  N.  E. 
549   (1896). 

Under  lease  to  pay  an  annual  rental 
for  a  gas  well  so  long  as  the  same  con- 
tinues profitable,  the  landlord  can  re- 
cover only  up  to  the  time  the  well  was 
abandoned  as  unprofitable,  and  not  for 
the  full  year  in  which  such  abandonment 


1898] 


Balkan  v.  Graeff  et  al. 


555 


kind  contracted  for,  it  cannot  be  pretended,  upon  any  fair  or  reasonable 
construction  of  the  contract,  that  the  lessees  were  nevertheless  bound 
for  the  royalty  of  $52-5  annually ;  for  the  payment  of  the  royalty  was  un- 
doubtedly based  upon  the  assumption  of  the  parties  that  ore — ore  of  the 
quality  specified — existed  there.  *  *  *  And  how  could  the  lessees 
be  in  default  in  mining  fifteen  hundred  tons  annually  if  there  was  no 
ore  to  mine?  We  are  not  to  construe  the  contract  to  require  the  lessees 
to  do  an  impossible  thing.  The  $525  is  not  a  penalty.  It  is  the  price 
of  the  ore.  The  grant  was  of  the  ore  in  place,  and,  if  the  subject-matter 
of  the  contract  fail,  the  price  is  not  payable."  The  same  doctrine  was 
applied  in  McCahan  v.  Wharton,  121  Pa.  St.  424,  16  Mor.  Min.  Rep.  239, 


took  place.  Moon  v.  Pittsburg  Plate 
Glass  Co.,  24  Ind.  App.  34,  56  N.  E. 
108    (1900). 

Under  lease  for  three  years  "or  so 
long  as  oil  or  gas  is  found  on  the  prem- 
ises," upon  payment  of  an  annual  rental 
for  each  well  from  which  gas  is  pro- 
duced there  is  no  liability  for  the  rental 
after  the  gas  has  ceased  to  flow  with 
sufficient  force  to  enable  the  lessee  to 
utilize  it.  Indianapolis  Gas  Co.  v.  Te- 
ters,  15  Ind.  App.  475,  18  Mor.  Min. 
Rep.  391,  44  N.  E.  549    (1896). 

Where,  after  proper  prospecting  and 
search,  no  ore  is  found,  the  lessee  under 
a  mining  lease  cannot  be  held  liable  for 
royalty  although  he  covenanted  to  take 
out  a  certain  fixed  amount.  Gribben  v. 
Atkinson,  64  Mich.  651,  15  Mor.  Min. 
Rep.  428,  31  N.  W.  570    (1887). 

If,  after  reasonable  search  and  effort 
on  the  part  of  the  lessee,  no  ore  is 
found,  a  lease  providing  for  exploring, 
mining,  taking  out,  and  removing  ore 
fails,  and  no  rent  can  be  recovered  from 
the  lessee.  Blake  v.  Lobb's  Estate,  110 
Mich.  608,  18  Mor.  Min.  Rep.  462,  68 
N.  W.  427    (1896). 

Under  a  lease  requiring  mining  of  a 
certain  quantity  of  ore  sufficient  to  pro- 
duce a  certain  minimum  royalty  or 
otherwise  the  payment  thereof,  the  ex- 
haustion of  the  ore  relieves  the  lessee 
from  the  payment  of  any  royalty  except 
that    upon     the      ore      actually     found. 


Hewitt  Iron  Min.  Co.  v.  Dessau  Com- 
pany, 129  Mich.  590,  22  Mor.  Min.  Rep. 
Ill,  89  N.  W.  365,  8  Detroit  L.  N. 
1093   (1902). 

Under  agreement  by  which  land  was 
to  be  tested  for  coal,  and  in  case  mining 
was  not  commenced  within  one  year  the 
payment  of  an  annual  rent,  the  owner 
cannot  recover  in  action  for  the  rent  if 
no  coal  existed  in  the  land;  but  the  bur- 
den of  showing  none  existed  there  is  on 
the  defendant.  Cook  v.  Andrews  & 
Hitchcock,  36  Ohio  St.  174,  3  Mor.  Min. 
Rep.  171   (1880). 

Under  covenant  to  mine  a  certain 
number  of  tons  per  year,  or  in  default 
thereof  pay  a  certain  amount,  the  ex- 
haustion of  the  mineral  is  a  good  de- 
fense to  an  action  on  the  covenant. 
Muhlenberg  v.  Henning,  116  Pa.  St.  138, 
15  Mor.  Min.  Rep.  423   (1887). 

Under  a  lease  granting  lessee  the  right 
to  dig  for,  mine,  and  take  away  iron 
ore  for  a  period  of  fifteen  years,  paying 
a  certain  royalty  therefor,  and  provid- 
ing that  if  enough  ore  was  not  produced 
in  any  year  to  make  up  a  certain  mini- 
mum amount,  that  amount  should  be 
paid,  to  be  made  up  in  some  subsequent 
year,  but  containing  no  agreement  of  any 
kind  to  pay  a  fixed  absolute  minimum 
sum  for  the  ore  in  place,  the  lessees 
are  not  liable  for  the  minimum  rent 
after  the  ore  has  become  exhausted. 
Boyer  v.  Fulmer,  176  Pa.  St.  282,  35 
Atl.  235   (1S96). 


556 


Water  and  Mineral  Cases.        [Pennsylvania 


15  Atl.  615,  and  in  Boyer  v.  Fulmer,  176  Pa.  St.  282,  35  Atl.  235.  In 
the  latter  case  the  lease  was  for  the  mining  of  iron  ore,  and  the  royalty 
was  to  be  60  cents  a  ton  for  every  ton  of  ore  sold  from  the  premises, 
but  the  amount  was  to  be  not  less  than  $400  each  year.  On  the  trial 
of  an  action  for  the  unpaid  royalties  the  defendant  offered  to  prove 
that  he  had  mined  whatever  ore  it  was  possible  to  obtain  on  the  prem- 
ises, that  he  has  expended  $10,000  in  his  efforts  to  obtain  ore,  that 
the  ore  in  the  place  was  exhausted,  and  that  the  premises  did  not  con- 
tain the  quantity  of  ore  necessary  to  produce  the  minimum  quantity  of 
ore  fit  for  use  in  a  furnace,  to  pay  the  royalty  fixed.  The  court  below 
rejected  the  offers  of  testimony,  and  instructed  the  jury  to  render  a  ver- 


Where  a  well  becomes  exhausted  and 
is  abandoned  there  is  no  further  liability 
for  rent  under  a  lease  providing  for  an- 
nual rental  for  each  well  after  gas  is 
found  in  paying  quantities.  Williams  v. 
Guffy,  178  Pa.  St.  342,  18  Mor.  Min. 
Rep.  478,  35  Atl.  875   (1896). 

Lessee  will  not  be  required  to  pay  the 
minimum  royalty  under  a  lease  provid- 
ing for  the  production  of  a  certain 
amount  of  coal  "unless  prevented  from 
doing  so  by  any  unavoidable  accident  or 
occurrences  beyond  their  control,"  where 
the  coal  has  become  exhausted.  Bannan 
v.  Graeff,  principal  case. 

It  is  no  defense  that  the  enterprise 
did  not  prove  as  profitable  as  the  lessee 
expected.  Skillen  v.  Logan,  21  Pa. 
Super.  Ct.  106   (1902). 

The  lessee  is  at  the  risk  of  the  quan- 
tity and  value  of  the  subject-matter, 
but  not  of  the  being  or  existence  of  it, 
and  therefore  if  there  is  a  total  destruc- 
tion or  exhaustion  of  the  subject-matter 
of  the  lease,  or  if  it  be  found  not  to 
exist,  the  lessee  may  abandon  the  lease. 
Gowan  v.  Christie,  L.  R.  2  H.  L.  (Sc.) 
273,  5  Moak  114,  8  Mor.  Min.  Rep.  688 
(1873). 

Where  covenant  is  that  on  failure  to 
take  out  a  stipulated  quantity,  royalty 
with  respect  thereto  shall  neverthless  be 
paid,  the  nonexistence  or  exhaustion  of 
the  mineral  is  a  good  defense.  Lord 
Clifford  v.  Watts,  L.  R.  5  C.  P.  577 
{1870). 


VIII.    Effect  of  Value  of  Mineral. 

The  mere  fact  that  leased  premises 
prove  to  be  of  less  value  than  were  sup- 
posed, is  no  defense  to  an  action  for 
rent.  The  nonexistence  of  things  which 
were  merely  matters  of  inducement  to 
the  execution  of  the  contract  will  not 
relieve  a  party  from  its  obligations;  but 
the  case  is  entirely  different  where  the 
thing  contracted  for,  and  which  consti- 
tuted the  subject-matter  of  the  contract, 
had  no  existence.  Diamond  Iron  Min. 
Co.  v.  Buckeye  Iron  Min.  Co.,  70  Min. 
500,  19  Mor.  Min.  Rep.  197,  73  N.  W. 
507   (1897). 

Under  covenant  to  work  a  mine  as 
long  as  it  was  fairly  workable,  the  ten- 
ant is  not  obliged  to  work  at  a  dead 
loss.  Jones  v.  Shears,  7  C  &  P.  346,  32 
Eng.  C.  L.  649,  8  Mor.  Min.  Rep.  333 
(1836). 

Lessee  agreeing  to  pay  royalty  out  of 
the  proceeds  of  a  mine  is  not  bound 
to  continue  work  at  a  loss,  after  rea- 
sonable efforts  show  that  the  property 
cannot  be  profitably  worked.  Caley  v. 
Portland,  18  Colo.  App.  390,  22  Mor. 
Min.  Rep.  595,  71  Pac.  891    (1903). 

Under  a  provision  that  a  certain 
amount  of  ore  should  be  mined  provided 
it  could  be  advantageously  done,  lessee 
is  not  required  to  mine  unmerchantable 
ore  or  ore  which  could  not  be  mined 
at  a  profit.  Garman  v.  Potts,  135  Pa. 
St.  506,  16  Mor.  Min.  Rep.  108,  19  Atl. 
1071,  26  W.  N.  C.  305    (1890). 


1898] 


Bannan  v.  Gkaeff  et  al. 


557 


diet  for  the  plaintiff  for  the  full  amount  claimed.  An  appeal  was  taken 
to  this  court,  and  we  reversed  the  judgment;  holding  that  while  the 
defendant  was  bound  to  take  out  the  ore,  or  pay  the  fixed  royalty  if 
the  ore  was  there,  yet  if  it  was  not  there,  or  had  become  exhausted,  the 
obligation  to  pay  the  royalty  ceased.  We  said :  "If  the  ore  was  not 
there  at  all,  or  became  exhausted,  so  that  it  could  no  longer  be  taken 
out  in  such  quantity,  the  lessee  was  not  bound  to  pay  for  it.  He  could 
not  do  an  impossible  thing,  and  therefore  could  not  be  held  liable  for 
not  doing  it."  These  decisions  control  the  present  case.  We  are  clearly 
of  opinion  that  the  learned  court  below  was  entirely  correct  in  discharg- 
ing the  rule  for  judgment  for  want  of  a  sufficient  affidavit  of  defense. 
Judgment  affirmed  and  procedendo  awarded. 


Lessee  is  relieved  from  performance 
of  covenant  to  work  a  mine  in  good  and 
miner-like  manner  by  the  exhaustion  of 
the  mineral.  Walker  v.  Tucker,  70  111. 
527,   8  Mor.  Min.  Rep.  672    (1873). 

Under  covenant  requiring  a  certain 
amount  of  coal  to  be  taken  out  or  the 
royalty  thereon  paid,  unless  prevented 
from  taking  out  that  quantity  by  acci- 
dent or  casualty,  or  circumstances  not 
under  the  lessee's  control,  it  was  held 
that  an  unexpected  inferiority  of  the 
coal,  which  made  it  unmerchantable,  was 
a  circumstance  beyond  the  control  of 
the  lessee  and  released  him  from  the 
payment  of  the  royalty.  Givens'  Execu- 
tors v.  Providence  Coal  Co.,  22  Ky.  L. 
Rep.   1217,  60  S.  W.  304    (1901). 

IX.    Nonexistence    on    Adjoining 
Property. 

Under  covenant  to  bore  wells  and  op- 
erate them  and,  if  successful,  pay  royal- 
ties, or  otherwise  a  stipulated  rent,  it 
is  not  a  sufficient  test  that  no  oil  was 
found  in  adjoining  properties  and  lessees 


are  liable  for  rent  so  long  as  they  retain 
their  rights  under  the  lease  without 
surrender,  although  they  do  not  enter 
into  possession  or  prospect  upon  the 
property.  Jamestown  &  F.  R.  Co.  v. 
Egbert,  152  Pa.  St.  53,  25  Atl.  151 
(1892). 

Lessee  cannot  show,  in  defense  of  an 
action  for  rent,  that  no  oil  or  gas  waa 
found  in  wells  drilled  upon  adjoining 
premises.  Gibson  v.  Oliver,  158  Pa.  St. 
277,   27   Atl.   961    (1893). 

Fact  that  no  oil  or  gas  was  found 
in  wells  upon  adjoining  premises  is  no 
defense  in  an  action  on  a  covenant  to 
drill  wells  or  pay  rental.  Cochran  v. 
Pew,  159  Pa.  St.  184,  28  Atl.  219 
(1893). 

As  to  peculiar  rules  of  construction 
applied  to  gas  and  oil  leases,  see  note 
to  Bellevue  Gas  &  Oil  Co.  v.  Pennell, 
ante,  p.  396. 

As  to  exploration,  development,  and 
operation  required  under  gas  or  oil  lease, 

see  note  to  Mills  v.  Hartz,  p.  ,  vol. 

3,  this  series. 


558 


Water  and  Mineral  Cases. 


[California 


SHAW  v.  CALDWELL  et  aL 

[District   Court  of  Appeal,   Third  District  of  California,  April  3,  1911;   rehearing 
denied  by  Supreme  Court  June  1,  1911.] 

—  Cal.  — ,  115  Pac.  941. 

1.  Deeds — Mining  License. 

A  deed  conveying  one-half  interest  in  a  mine,  with  an  agreement  that  the  grantees 
may  work  said  mine  at  their  own  cost  and  divide  a'!  proceeds  for  a  period  of 
twenty  years  equally  among  the  parties,  is  construed  as  creating  only  a  license 
with  respect  to  the  half  retained. 

2.  Same — Implied    Covenants. 

A  sale  and  conveyance  of  all  right,  title,  and  interest  in  property  implies  cove- 
nants of  special  warranty. 

3.  Same — Estoppel. 

One  conveying  land  with  covenants  of  special  warranty  is  estopped  to  set  up  any 
rights  of  ownership  by  virtue  of  a  reservation  in  a  former  deed. 

4.  Lease — Distinguished  from  License. 

The  teat  to  determine  whether  an  agreement  is  a  lease  or  a  license  is  whether 
exclusive  possession  is  given  against  all  the  world,  including  the  owner,  or  whether 
a  mere  privilege  to  occupy  under  the  owner  is  conferred. 

5.  License — Revocation. 

A  license  is  a  mere  personal  privilege  not  binding  upon  subsequent  grantees,  and 
consequently  revoked  by  conveyance  of  the  land. 

6.  Same — Specialty. 

The  fact  that  a  license  is  given  by  written  instrument  or  by  deed  does  not  affect 
its  revocability. 

Appeal  from  Superior  Court,  Tuolumne  County;  G.  W.  Nico!,  Judge. 

Action  to  recover  proceeds  of  a  mine  by  Herbert  Shaw  against  E.  F. 
Caldwell  and  others.  Judgment  for  plaintiff.  Defendants  appeal.  Re- 
versed. 

For  appellants — J.  C.  Webster. 

For  respondents — J.  B.  Curtin. 

BURNETT,  J.  On  February  5,  1904,  plaintiff  was  the  owner  of 
the  Hunter  Creek  mine.  On  said  date,  by  a  grant,  bargain,  and  sale 
deed,  he  conveyed  to  E.  Caldwell  and  F.  E.  Caldwell  "an  undivided  one- 
half  interest  in  and  to"  said  mine.     It  is  recited  in  said  deed  that  it  was 


NOTE. 

Construction  of  conveyances,  see  King 


v.  New  York  &  Cleveland  Gas  Coal  Co., 
22  Mor.  Min.  Rep.  515. 


1911]  Shaw  v.  Caldwell  et  al.  559 

"for  and  in  consideration  of  one  dollar  to  him  in  hand  paid  by  the  parties 
of  the  second  part,"  and  also  "it  being  one  of  the  considerations  of  this 
conveyance  that  said  parties  of  the  second  part  will,  during  the  period 
in  which  the  party  of  the  first  part  shall  be  the  owner  of  the  remaining 
one-half  of  said  mine,  do  and  perform  at  their  own  cost  and  expense  all 
work  required  to  be  done  upon  said  mine  in  order  to  comply  with  the 
provisions  of  section  2324  of  the  Revised  Statutes  of  the  United  States, 
and,  should  they  fail  at  any  time  so  to  do,  then  the  party  of  the  first 
part  shall  be  entitled  to  have  said  one-half  interest  in  said  mine  as  hereby 
conveyed,  reconveyed  to  him,  and  the  parties  of  the  second  part  shall 
thereafter  have  no  interest  in  said  mine."     The  deed  likewise  contained 
this  clause :    "It  is  furthermore  agreed  that  the  parties  of  the  second  part 
may  work  and  develop  said  mine  at  their  own  cost  and  expense  and  all 
gold  or  proceeds  taken  therefrom  for  a  period  of  twenty  years  from  date 
hereof  shall  be  divided  equally  among  the  parties  hereto,  that  is  to  say, 
each  party  hereto  shall  have  one-third  of  said  proceeds."     On  the  24th 
day  of  January,  1906,  for  a  consideration  of  $100,  plaintiff  sold  and  con- 
veyed to  one  Thomas  Armstrong  "all  of  his  right,  title  and  interest,  same 
being  a  one-half  undivided  interest,  of,  in  and  to"  said  mine,  and,  prior  to 
the  beginning  of  this  action  defendant,  D.  J.  Sutton,  by  mesne  convey- 
ances, had  succeeded  to  this  interest.  On  the  28th  day  of  July,  1906,  the 
said  E.  Caldwell  conveyed  all  of  his  interest  in  said  property  to  defendant 
Martha  Caldwell.    No  gold  was  taken  out  of  the  mine  until  after  the  con- 
veyance by  plaintiff  to  Armstrong  as  aforesaid,  and  the  action  was  brought 
to  recover  one-third  of  the  proceeds  of  the  development  of  the  mine  from 
and  subsequent  to  July  30,  1906.  '  The  court  found  that  the  said  agree- 
ment as  to  the  division  of  the  proceeds  of  the  mine  is  still  in  full  force 
and  effect,  and  that  "plaintiff  is  entitled  to  have  paid  over  to  him  by 
defendants  E.  F.  Caldwell  and  Martha  Caldwell  one-third  of  all  gold  and 
proceeds  derived  from  operating  and  working  the  mine  for  a  period  of 
20  years  from  and  after  the  5th  day  of  February,  1904,"  and,  upon  an 
account  taken,  it  was  determined  that  at  the  time  of  the  trial  there  was 
due,  under  this  agreement,  the  sum  of  $72.30,  for  which  amount  judgment 
was  entered  for  plaintiff.     From  this  judgment,  the  appeal  is  taken  by 
defendants  E.  F.  Caldwell  and  Martha  Caldwell. 

The  decisive  factor  in  the  case  is  the  construction  of  said  agree- 
ment as  to  the  development  of  the  mine  and  the  division  of  the  proceeds. 
By  appellants  it  is  contended  that  this  constitutes  a  mere  permission  or 
license  to  work  the  property  at  their  own  expense,  which  might  be  exer- 
cised or  not  by  the  Caldwells,  and  which  was  in  fact  never  exercised 
until  it  was  revoked  by  the  plaintiff  when  he  executed  the  said  convey- 
ance to  Armstrong.     This  seems  to  be  in  entire  accord  with  the  natural 


560  Water  and  Mineral  Cases.  [California 

and  ordinary  signification  of  the  terms  employed.  It  is  to  be  observed 
that  the  agreement  is  "that  the  parties  of  the  second  part  may  work  and 
develop  said  mine  at  their  own  cost  and  expense."  More  apt  words 
could  hardly  have  been  selected  to  empower  the  parties  of  the  second 
part  to  exercise  a  choice  in  the  matter.  It  is  not  made  imperative,  and 
there  is  no  agreement  on  their  part  that  they  will  work  the  mine  at  their 
own  expense.  The  only  obligation  imposed  upon  them  is  that  concern- 
ing the  division  of  the  proceeds  as  aforesaid  in  case  they  exercise  their 
discretion  to  so  develop  the  mine.  It  is  true  that  "may"  is  sometimes 
construed  as  "must,"  but  this  is  only  for  the  purpose  of  effectuating  the 
intention  of  the  parties.  There  does  not  appear  to  be  any  reason  why  we 
should  depart  here  from  the  ordinary  meaning  of  the  terms  employed. 

On  the  other  hand,  several  circumstances  seem  to  concur  in  sup- 
port of  the  natural  interpretation  of  the  language  found  in  said  agree- 
ment. One  of  these  circumstances  is  the  conduct  of  the  parties  them- 
selves. Admittedly  for  two  years  no  effect  was  given  to  this  provision. 
Plaintiff  worked  the  mine  in  connection  with  the  other  parties  to  the 
agreement,  and  there  seems  to  have  been  no  contention  that  the  latter 
were  required  to  operate  it  at  their  own  expense.  In  other  words,  the 
parties,  by  their  actions,  interpreted  the  contract  as  permissive  merely. 
Again,  the  only  other  possible  view  of  the  provision  is  that  it  was  in- 
tended as  a  part  of  the  consideration  for  the  conveyance  of  one-half  of  the 
mine  to  said  parties,  or  that  it  constitutes  a  limitation  upon  the  estate 
conveyed  to  the  latter. 

As  to  the  former  contention,  it  may  be  said  that  there  is  nothing 
in  the  deed  itself  to  show  that  it  was  a  part  of  the  consideration,  and  it 
seems  unreasonable  to  conclude  that  it  should  be  so  held.  Indeed,  the 
consideration  is  mentioned  expressly  as  $i  and  the  assessment  work  to 
be  done  by  the  grantees.  Thereby,  in  accordance  with  a  familiar  rule  of 
construction,  must  the  provision  before  us  be  deemed  no  part  of  the 
consideration  for  said  conveyance.  Furthermore,  it  may  be  urged  that 
the  performance  of  the  assessment  work  seems  to  have  been  sufficient 
compensation  for  one-half  of  the  mine,  and  it  may  be  added  that,  since 
the  grantees  were  entitled  to  one-half  of  the  proceeds  by  virtue  of  the 
said  conveyance,  the  additional  award  of  one-sixth  could  hardly  have 
been  considered  more  than  sufficient  to  reimburse  them  for  the  labor  and 
expense  of  the  development  of  plaintiff's  portion  of  the  mine. 

Likewise,  we  fail  to  see  anything  in  the  language  used  or  the  surround- 
ing circumstances  to  indicate  any  purpose  to  impose  any  condition  upon 
the  estate  conveyed  to  the  grantees.  By  the  formal  terms  employed  in 
the  granting  clause,  plaintiff  did  "grant,  bargain  and  sell"  to  said  grantees 
an  undivided  one-half  interest  in  said  premises,  "together  with  all  and 


1911] 


Shaw  v.  Caldwell  et  al.  561 


singular  the  tenements  and  appurtenances  thereto  belonging  or  otherwise 
appertaining."    The  fee  thereby  conveyed  could  only  be  reduced  or  quali- 
fied by  language  equally  plain.     Nothing  of  the  kind  is  found.     Indeed, 
if  the  agreement  in  controversy  be  regarded  as  a  part  of  the  considera- 
tion, it  cannot  be  deemed  as  creating  a  condition  subsequent  or  modify- 
ing 'in  any  degree  the  estate  conveyed.     In  Hartman  v.  Reed,  50  Cal. 
485,  it  is  held  that  "if  one  conveys  to  another  a  tract  of  land,  part  of 
a  Mexican  grant,  in  consideration  of  an  agreement  by  the  other  to  prose- 
cute the  claim  before  the  courts  for  final  confirmation,  and  the  grantee 
fails  to  fulfil  his  agreement,  the  title  vests  absolutely  and  the  remedy 
of  the  grantor  for  the  breach  of  the  agreement  is  an  action  for  damages." 
In  Lawrence  v.  Gayetty,  78  Cal.  126,  20  Pac.  382,  12  Am.  St.  Rep.  29, 
the  consideration  was  the  promise  to  make  valuable  improvements,  and 
the  court  said :    "It  must  be  borne  in  mind  that  the  plaintiff  did  not  con- 
tract to  convev  upon  the  performance  of  the  contract  on  the  part  of  the 
defendants      Therefore  his  promise  was  not  dependent  upon  theirs,  nor 
was  there  anything  appearing  in  the  deed,  or  in  the  contract  under  which 
it  was  made,  showing  or  tending  to  show  that  a  compliance  with  their 
promise  was  regarded  as  a  condition  subsequent,  or  that  a  failure  to  per- 
form on  their  part  should  in  any  way  affect  the  title  conveyed  to  them. 
The  case  is  precisely  in  principle  the  same  as  if  the  plaintiff  had  con- 
veved  and  taken  a  note  for  the  purchase  money,  and  the  defendants  had 
failed  to  pay  the  same."    In  Cullen  v.  Sprigg,  83  Cal.  56,  23  Pac.  222,  it 
is  held  that  "the  recital  in  a  deed  that  it  is  in  consideration  of  a  certain 
sum  and  that  the  grantee  is  to  do  certain  things  is  not  an  estate  upon 
condition,  not  being  in  terms  upon  condition,  nor  containing  a  clause  of 
re-entry  or  forfeiture."     To  the  same  effect  is  Behlow  v.  Southern  Pac. 
R    Co      1 -jo    Cal.    16,    62    Pac.    295,    wherein    the    familiar    doctrine    is 
asserted  that  "conditions  subsequent,  especially  when  relied  on  to  work 
a  forfeiture,  must  be  created  by  express  terms  or  clear  implication  and  are 
to  be  construed  strictly  against  a  forfeiture,  which  is  not  favored  in  law. 
It  is  held,  further,  that  "a  provision  in  the  deed  by  which  the  railway 
company  agrees,  as  a  further  consideration  of  the  grant,  to  place  two 
stations  at  a  location  to  be  selected  by  the  grantor,  at  which  all  trains 
must  stop,  is  not  a  condition  upon  which  the  estate  is  granted  and  is 
not  available  to  defeat  the  estate  created  by  tiie  grant,  but  is  merely  a 
personal  covenant  on  the  part  of  the  grantee." 

The  situation  is  clearly  brought  within  the  definition  of  a  license 
in  respect  to  real  estate,  which  is  an  authority  to  do  a  particular  act  or 
series  of  acts  upon  the  land  of  another  without  possessing  an  estate 
therein  25  Cyc.  640.  The  test  to  determine  whether  an  agreement  for 
the  use  of  real  estate  is  a  license  or  a  lease  is  whether  the  contract  gives 
VV.  &  M—  36 


562  Water  and  Mineral  Cases.  [California 

exclusive  possession  of  the  premises  against  all  the  world,  including  the 
owner,  in  which  case  it  is  a  lease,  or  whether  it  merely  confers  a  privi- 
lege to  occupy  under  the  owner,  in  which  case  it  is  a  license,  and  this  is 
a  question  of  law  arising  out  of  the  construction  of  the  instrument.     Id. 

It  is  said  in  Wheeler  et  al.  v.  West  et  al.,  71  Cal.  126,  11  Pac.  871: 
"There  is  a  broad  distinction  between  a  lease  of  a  mine,  under  which  the 
lessee  enters  into  possession  and  takes  an  estate  in  the  property,  and  a 
license  to  work  the  same  mine.  In  the  latter  case  the  licensee  has  no 
permanent  interest  in  the  property,  or  estate  in  the  land  itself,  but  only 
in  the  proceeds,  and  in  such  proceeds,  not  as  realty  but  as  personal  prop- 
erty; and  his  possession,  like  that  of  an  individual  under  a  contract  with 
the  owner  of  land  to  cut  timber  or  harvest  a  crop  of  potatoes  thereon 
for  a  share  of  the  proceeds,  is  the  possession  of  the  owner."  This  license 
granted  to  the  said  parties  affected,  of  course,  only  the  one-half  interest 
belonging  to  plaintiff,  as  their  ownership  of  the  other  half  carried  with 
it  necessarily  the  right  of  possession  and  development. 

As  to  the  plaintiff,  his  right  under  the  provision  in  question  was  to 
insist  upon  one-third  of  the  proceeds  of  the  mine  in  case  the  licensees 
exercised  their  option,  and  it  was  his  privilege  to  revoke  the  license  at 
his  pleasure.  The  license  was  in  fact  revoked  by  his  said  conveyance  to 
Armstrong.  This  necessarily  follows  from  the  nature  of  a  license.  It 
being  a  mere  personal  privilege,  it  is  not,  of  course,  a  covenant  running 
with  the  land,  it  does  not  bind,  therefore,  the  successors  in  interest  of  the 
parties,  and  it  would  be  manifestly  inequitable  to  allow  the  plaintiff  to 
enjoy  the  benefits  of  the  agreement  when  he  had  deprived  the  other  parties 
of  the  reciprocal  privilege  conferred  by  said  provision. 

"A  license  is  founded  upon  personal  confidences,  a  mere  personal 
privilege  extending  to  the  person  to  whom  it  is  given,  and  is  therefore 
not  assignable  and  an  attempt  to  assign  terminates  the  privilege."  "A 
mere  license,  which  is  nothing  more  than  a  personal  privilege,  is  revocable 
at  the  pleasure  of  the  licensor,  and  the  fact  that  the  license  was  created 
by  a  written  instrument,  or  even  conferred  by  deed,  does  not  affect  the 
rule  of  revocability  at  the  option  of  the  licensor."  25  Cyc.  644.  "A 
license  may  be  revoked  by  a  sale  and  conveyance  of  the  land  without  re- 
serving the  privilege  to  the  licensee  or  by  a  lease  or  mortgage  of  the  same, 
for  a  mere  license  cannot  work  a  breach  of  the  warranty  of  title."  25 
Cyc.  650. 

The  foregoing  is  undoubtedly  the  view  of  the  situation  taken  by 
plaintiff  when  he  executed  said  deed  to  Armstrong.  The  following  coven- 
ants were  therein  implied :  "  ( 1 )  That  previous  to  the  time  of  the  execu- 
tion of  such  conveyance  the  grantor  has  not  conveyed  the  same  estate, 
or  any  right,  title,  or  interest  therein,  to  any  person  other  than  the  grantee. 


1911]  Shaw  v.  Caldwell  et  al.  563 

(2)  That  such  estate  is  at  the  time  of  the  execution  of  such  conveyance 
free  from  incumbrance,  done,  made,  or  suffered  by  the  grantor,  or  any 
person  claiming  under  him."  Section  11 13,  Civ.  Code.  According  to 
respondent's  theory  of  the  case  he  had  previously  conferred  upon  said 
grantees  the  right  to  the  exclusive  possession  of  the  whole  of  said  land 
for  the  term  of  twenty  years  and  he  comes  into  court  insisting  that  they 
now  have  such  right.   - 

He  cannot  do  this  in  the  face  of  his  warranty  that  he  had  not 
conveyed  any  interest  in  his  part  of  the  property  to  any  one,  and  had  not 
suffered  any  incumbrance  to  attach  to  it.  But  it  is  insisted  that  Armstrong 
had  notice  of  the  previous  conveyance,  and  therefore  he  took  the  estate 
subject  to  the  previously  imposed  burden. 

Manifestly  this  would  be  of  material  significance  if  the  former 
grantees  were  asserting  some  interest  in  the  estate  apparently  conveyed 
by  plaintiff  to  Armstrong,  but  it  would  require  a  long  search  to  find  an 
authority  holding  that  the  grantor  of  such  a  conveyance  would  be  heard 
to  assert  that  he  was  still  the  owner  of  an  interest  by  virtue  of  a  reserva- 
tion in  a  former  deed.  By  the  said  conveyance,  the  plaintiff  does  not  only 
"grant,  bargain,  sell,  remise,  release,  and  forever  quitclaim  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  assigns,  all  of  his  right,  title 
and  interest,  same  being  a  one-half  undivided  interest  in  and  to"  said 
property,  but  he  specifies  "together  with  all  the  dips,  spurs  and  angles 
and  also  all  the  metals,  ores,  gold  and  silver  bearing  rock,  quartz  rock  and 
earth  therein;  and  all  the  rights,  privileges  and  franchises  thereto  in- 
cident, appendant  and  appurtenant  or  therewith  usually  had  and  enjoyed, 
and  also  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereto  belonging  or  in  any  wise  appertaining,  and  the  rents,  issues  and 
profits  thereof."  It  is  needless  to  add  that,  in  view  of  the  foregoing 
recitals,  it  is  a  conclusive  presumption  against  the  plaintiff  that  he  was 
at  the  time  the  absolute  owner  of  an  undivided  one-half  interest  in  said 
mine.     Subdivision  2,  §  1962,  Code  Civ.  Proc. 

Nor  can  it  be  claimed  that  this  is  a  circumstance  of  no  concern  to  appel- 
lants. They  have  recognized  the  said  provisions  as  conferring  simply  a 
personal  privilege,  and  therefore,  considering  it  revoked  by  the  said  deed 
from  plaintiff  to  Armstrong,  they  cannot  consistently  dispute  the  right 
of  Armstrong's  grantee  to  one-half  of  the  proceeds  of  the  mine.  Under 
respondent's  contention,  they  must  unquestionably  yield  to  him  two-thirds 
of  the  balance,  and  be  content  with  one-sixth  of  what  the  mine  yields. 

The  case  upon  which  respondent  principally  relies  is  Downing  v.  Rade- 
macher,  133  Cal.  220,  65  Pac.  385,  85  Am.  St.  Rep.  160,  Therein  it  is 
held,  as  stated  in  the  syllabus,  that  "where  the  owner  of  a  mine  deeded 
two-thirds  thereof,  the  sole  consideration  of  which  was  a  contemporaneous 


564  Water  and  Mineral  Cases.  [California 

written  agreement  reciting  its  execution  and  agreeing  that  the  grantee 
should  have  the  exclusive  right  to  work  the  mine,  and  should  mill  and 
reduce  all  ores  taken  therefrom,  and  deliver  one-third  of  all  minerals  to 
the  grantor,  the  deed  and  agreement  constitute  one  instrument  as  between 
the  parties  and  grantees  with  notice,  and  must  be  read  as  though  each  re- 
ferred to  the  other  and  incorporated  its  terms;  and  the  deed  is  in  effect 
subject  to  the  conditions  set  forth  in  the  agreement."  It  is  to  be  observed 
as  to  that  case  that  the  contract  entered  into  was  the  sole  consideration 
for  the  deed,  there  was  an  entire  failure  of  such  consideration,  and  the 
court  held  that  the  circumstances  showed  that  the  grant  of  the  mine  was 
conditional.  From  another  standpoint  the  conclusion  of  the  court  is 
shown  to  be  just  and  equitable.  Downing  brought  suit  to  quiet  his  title. 
This,  as  well  settled,  is  an  equitable  action.  The  circumstances  of  the 
case  made  peculiarly  applicable  the  maxim  that  "he  who  seeks  equity  must 
do  equity."  It  is  indeed  strange  that  it  should  be  contended  that  a  plain- 
tiff declining  to  pay  any  part  of  the  consideration  or  to  meet  his  obligation 
imposed  thereby  could  obtain  from  a  court  of  equity  a  decree  establishing 
his  title  without  being  required,  as  a  condition  precedent,  to  perform  his 
promise,  by  virtue  of  which  the  conveyance  to  him  had  been  made.  As 
stated  in  the  Downing  case  by  the  late  Mr.  Justice  Temple :  "As  between 
the  parties,  at  least,  there  is  no  such  magic  in  a  conveyance  of  a  title  in 
fee  which  can  be  used  to  do  an  owner  out  of  his  property." 

The  cases  from  other  jurisdictions  cited  by  the  court  in  the  Downing 
case  also  exhibit  a  situation  totally  different  from  what  we  have  here. 
For  instance,  in  Richter  v.  Richter,  in  Ind.  456,  12  N.  E.  698,  the  real 
consideration  was  a  contemporaneous  agreement  in  writing  by  the  terms 
of  which  the  son  agreed  to  support  his  father  so  long  as  he  should  live. 
A  few  months  afterwards  the  son  refused  to  perform  this  contract.  The 
father  brought  suit  for  a  reconveyance.  The  defense  was  that  the  con- 
sideration for  the  deed  was  the  agreement,  and  the  only  remedy  the 
father  had  was  to  sue  upon  it.  But  the  court,  applying  the  familiar  doc- 
trine that,  "in  the  construction  of  deeds  as  in  construing  other  writings 
courts  seek  to  ascertain  and  give  effect  to  the  real  intention  of  the  parties 
as  such  intention  may  be  gathered  from  the  language  of  the  whole  in- 
strument," reached  the  just  conclusion  that  the  parties  intended  that  the 
estate  should  be  held  and  enjoyed  on  condition  that  the  grantee  perform 
the  acts  specified  and  therefore  that  it  was  a  conditional  estate.  So  in 
Manning  v.  Frazier,  96  111.  279,  the  defendant  entered  into  a  written  con- 
tract with  John  R.  Squire  and  O.  D.  Payne  by  which  he,  in  consideration 
of  Si  and  the  agreements  contained  in  the  contract,  bargained,  sold,  and 
conveyed  to  them,  their  heirs  and  assigns,  all  of  the  coal,  limestone,  iron 
ore,  rock  oil,  and  other  minerals  in,  upon,  or  under  a  certain  farm  or 


1911]  Shaw  v.  Caldwell  et  al.  565 

tract  of  land  which  was  particularly  described,  and  contains  700  acres. 
The  deed  granted  to  them  the  right  to  enter  upon  and  search  for  such 
minerals,  and  to  dig,  mine,  explore,  and  occupy  with  neccessary  structures 
and  buildings,  and  to  mine  and  remove  the  coal,  limestone,  etc.  And  the 
parties  of  the  second  part  were  bound  to  enter  upon  and  make  search  for 
coal,  etc.,  within  two  years  from  that  date.  They  were  also  bound  to 
have  preparations  made  for  taking  out  coal  for  market  within  two  years 
and  they  were  to  pay  to  the  party  of  the  first  part  12  cents  for  each  ton 
of  coal  and  limestone  mined  and  removed  from  the  land,  and  for  ore  10 
cents  per  ton,  payments  to  be  made  quarterly.  The  only  questions  decided 
were  that  the  transaction  amounted  to  a  sale  of  real  estate  and  that  the 
grantor  had  a  vendor's  lien  on  the  coal,  etc.,  in  the  entire  mine  for  the 
whole  of  the  purchase  price,  the  court  saying:  "The  minerals  were  sold, 
the  purchase  money  was  not  paid,  and,  as  complainant  did  nothing  man- 
ifesting an  intention  to  waive  his  vendor's  lien,  equity  will  hold  that  it 
attached  and  must  be  enforced  for  the  amount  of  purchase  money  due 
and  unpaid."  It  must  be  apparent  that  none  of  the  foregoing  cases  in- 
volved the  question  of  license  and  each  of  them  possessed  features  appeal- 
ing irresistibly  to  the  conscience  and  compelling  the  decision  that  was 
rendered. 

To  summarize:  It  appears  reasonably  certain:  (1)  That  a  mere  license 
was  created  by  the  agreement  in  controversy  and  not  a  condition  subse- 
quent. (2)  That  it  operated  neither  to  convey  nor  to  reserve  any  estate 
in  any  part  of  the  mine  to  which  it  related.  Indeed,  this  is  implied  in 
the  finding  of  the  court  "that  on  the  5th  day  of  February,  1904,  the 
plaintiff  executed  to  one  E.  Caldwell  and  defendant  E.  F.  Caldwell  an 
instrument  in  writing  wherein  and  whereby  the  said  plaintiff  did  sell  and 
convey  unto  said  E.  Caldwell  and  defendant  E.  F.  Caldwell  the  individual 
one-half  of  the  Hunter  Creek  mine,"  and  "that  on  the  24th  day  of  January, 
1904,  the  plaintiff  sold  and  conveyed  the  remaining  one-half  of  said  Hun- 
ter Creek  mine  to  one  Thomas  Armstrong  by  deed  and  conveyance  in  the 
words  and  figures  following."  (3)  That  the  payment  by  said  licensees  to 
plaintiff  of  one-third  of  the  proceeds  in  case  the  mine  was  operated  by 
the  former  at  their  expense  implied  the  reciprocal  duty  on  the  part  of 
plaintiff  not  to  interfere  with  their  possession  of  the  whole  of  said  mine. 
(4)  That  said  license  was  revocable  at  the  pleasure  of  the  licensor  and 
it  was  actually  revoked  by  said  conveyance  to  Armstrong. 

These  views  necessarily  lead  to  a  decision  different  from  that  reached 
by  the  learned  trial  judge,  and  the  judgment  and  order  are  therefore 
reversed. 

We  concur:    CHIPMAN,  P.  J. ;  HART,  J. 


566 


Water  and  Mineral  Cases. 


[Oklahoma 


CHICAGO,  ROCK  ISLAND  &  PACIFIC  RAILWAY  CO.  v.  DAVIS. 

[Supreme  Court  of  Oklahoma,  May  10,  1910.] 
26  Okla.  434,  109  Pac.  214. 

(Syllabus  by  the  Court.) 

1.  Waters  and   Water  Courses — Drainage  of  Surface   Waters — Liability  of 

Railroad  Company. 
If  a  railroad  company  so  constructs  its  roadbed  and  ditches  as  to  divert  surface 
water  from  its  usual  and  ordinary  course,  and  by  its  ditches  or  artificial  channels 
causes  such  water  to  be  conveyed  to  a  particular  place  and  thereby  overflows  the 
land  of  another  proprietor,  which  before  the  construction  of  such  road,  ditches, 
or  channels  did  not  overflow,  the  company  will  be  liable  to  such  proprietor  for  the 
injury.* 

2.  Same — Immaterial  when   Ditches,  etc.,   Built. 

Whether  the  ditches  or  artificial  channels  be  constructed  on  the  right  of  way  at 
the  time  of  the  construction  of  the  road  as  a  part  thereof,  or  afterwards  in  tha 
operation  or  maintenance  of  the  same,  is  immaterial. 


CASE   NOTE. 

Measure  of  Damages  for  Injury  to 
Land  or  Crops  by  Inundation  from 
Surface  Water  Diverted  by  Rail- 
road Company. 

I.     Scope  op  Note,  567. 
II.     The  Rule  in  General,  567. 

III.  Permanent     or    Temporary 

Injury,  568. 

A.  What  a  Permanent  In- 

jury, 568. 

B.  But    One    Action    for 

Permanent        Injury, 
569. 

C.  What  a  Temporary  In- 

jury, 569. 

D.  Successive  Actions  for 

Continuing       Injury, 
569. 

IV.  Actual    Damages    to    Com- 

mencement op  Action,  570. 
V.     Injury  to  Land  Itself,  570. 

A.  Depreciation  in  Value, 

570. 

B.  Time  Considered,  571. 

C.  Crop  as  Part  of  Land, 

571. 


D.    Actual  Damage  or  Com- 
pensation, 572. 

VI.  Destruction     of     Growing 

Crop,  572. 

A.  Value     at     Time     and 

Place     of     Destruc- 
tion, 572. 

B.  Probable       Yield,    De- 

ducting Expense,  574. 

C.  Rental  Value  or  Value 

of  Use,  577. 

VII.  Injury  to  Crop,  577. 

A.  Partial,      Destruction, 

577. 

B.  Where   Only  Damaged, 

578. 

VIII.     Perennial  Crops,  579. 

IX.     Other  Matters  Considered, 
580. 

A.  Several  Crops  in  Same 

Year,  580. 

B.  All  Parts  of  Crop  Con- 

sidered, 580. 

C.  Damage    to    Crop    and 

to  Land  Proved  Sep- 
arately, 580. 

X.     Interest,  580. 

XL     Sickness  in  Family,  581. 


*For  note  as  to  the  liability  of  a  railroad  company  for  diverting  surface  waters* 
see  note  to  Chicago,  R.  I.  &  P.  R.  Co.  v.  Johnson,  p. ,  vol.  3,  this  series. 


C.   E.  I.  &  P.  Eailway  Co.  v.  Davis. 


567 


1910] 

,       ea me_Recovery  and  Measure  of  Damages  for  Overflow. 

SSS  watlr ^ttnfof  th  Sing p^r  «^^SS£  ^a 
diverted  water,  such  proprietor  may  treat  the  act  ^^V  depreciation  of  the 
permanent  injury  and  recover  his   d™&B™mJhecoT^™ «\™P        resu]ts  in  a 

Lue  fon^ne^pTHS'  Zt  propSo? o  suchrnS  of  maL^g  such  ditch  or 
SnTel0concLSrng  both  tun  a'nd  any  subse<,uent  owner  of  such  land. 

Action   for  damages  to  land  caused  by  overflow  of   surface  water. 
Judgment  for  plaintiff.  Affirmed. 

For  plaintiff-W.  C.  Stevens,  C.  O.  Blake,  H.  B.  Low  and  T.  R.  Be- 
man. 


XII. 


B. 


C. 
D. 


XIII. 

XIV. 

XV. 

XVI 


Obviation  of  Cause,  581. 
A.     Where    Cause    Can    Be 
Removed     or    Injury 
Remedied,  581. 
Cost     of     Removal     as 
Measure  of  Damage, 
582. 
Contra,  582. 
Prevention    of    Injury 
by  Landowner,  582. 
Speculative    Damages,    583. 
Punitive  Damages,  583. 
Double     Damages     Prohib- 
ited, 583. 
Source  of  Liability  Imma- 
terial, 583. 

I.  Scope  of  Note. 
This  note  is  confined  to  a  considera- 
tion of  portions  of  the  plaintiff's  lands 
by  the  overflowing  of  lands  occasioned 
by  the  acts  of  railroad  companies  in  the 
construction  and  operation  of  their 
roads;  and  while  the  same  general  rules 
apply  to  other  persons  inflicting  similar 
injuries,  and  similar  injuries  from  other 
causes,  such  cases  are  not  here  consid- 
ered. 


II. 


The  Rule  in  General. 


There  are  two  classes  of  injuries  to 
realty  from  the  overflow  of  waters.  The 
first 'includes  injuries  that  are  perma- 
nent in  their  nature,  and  for  these  the 
measure  of  damages  is  the  depreciation 
in  the  market  value  of  the  property  by 
reason  of  the  defendant's  wrong,  once 
for  all;  the  second  class  includes  injuries 


that  are  temporary  in  their  nature,  and 
for  these  the  measure  of  damages  is  the 
impairment  of  the  use  of  the  property 
by  the  wrongful  act  of  the  defendant  up 
to  the  commencement  of  the  action,  with 
the  right  of  successive  suits  if  the  wrong 
should  be  continued.  The  reason  for  the 
distinction  is  that  the  wrongdoer  in  the 
latter  case  will  not  be  presumed  to  in- 
tend to  continue  his  misconduct  or  to 
be  given  license  so  to  do.  Coleman  v. 
Bennett,  111  Tenn.  705,  69  S.  W.  734 
(1902). 

In  an  action  for  damages  to  growing 
crops  and  the  prevention  of  the  cultiva- 
tion of  portions  of  the  plaintiff's  lands 
occasioned  by  flooding  by  reason  of  the 
diversion  of  surface  waters,  the  Appel- 
late Court  of  Illinois  said:   "We  under- 
stand the  rules  deducible  from  the  de- 
cisions in  this  state  as  to  the  measure 
of  damages  in  such   cases  as  this  to  he 
as  follows:    (1)  That  for  the  lands  plain- 
tiff was  prevented  from  tilling,  he  is  en- 
titled to  recover  the  rental  value;      (2) 
that  for  the  lands  where  the  crops  were 
not  up,  the  damage  should  be  estimated 
upon  the  basis  of  the  rental  value,  and 
the  cost  of  seed  and  labor  in  breaking  up 
and   planting  or   sowing;     (3)     that    in 
cases   of    destruction    where    the    crops 
were  up  or  more  or  less  matured,  plain- 
tiff should  recover  as  is  last  above  stated, 
and,  in  addition  thereto,  the  cost  of  any 
labor    bestowed    after    the    planting    or 


568 


Water  and  Mineral  Cases. 


[Oklahoma 


For  defendant— B.  M.  Parmenter,  C.  M.  Myers,  and  C.  O.  Clark. 

WILLIAMS,  J.  In  the  case  of  C,  R.  I.  &  P.  R.  Co.,  plaintiff  in 
error,  v.  H.  C.  Johnson,  defendant  in  error  (No.  2,200,  decided  by  this 
court  on  March  8,  1910,  but  not  yet  officially  reported)  [25  Okla.  760], 
107  Pac.  662,  it  was  held:  "If  a  railroad  company  so  constructs  its  road- 
bed and  ditches  as  to  divert  surface  water  from  its  usual  and  ordinary 
course,  and  by  its  ditches  or  artificial  channels  causes  such  water  to 
be  conveyed  to  a  particular  place,  and  thereby  overflows  the  land  of 
another  proprietor  which,  before  the  construction  of  such  road,  ditches, 


sowing;  or,  at  his  option  he  may  re- 
cover the  value  of  the  crop  at  the  time 
of  its  destruction,  with  the  right  to 
the  purchaser  to  mature  the  crop  and 
harvest  or  gather  it;  (4)  that  where  the 
crop  was  injured,  but  not  destroyed, 
the  assessment  should  be  commensurate 
with  the  depreciation  in  value."  Kan- 
kakee &  S.  R.  Co.  v.  Horan,  17  111.  App. 
C50    (1885). 

In  action  for  damages  for  flooding 
premises  by  reason  of  embankments, 
etc.,  damages  were  allowed  for  the  de- 
struction of  crops,  the  rotting  of  the 
foundations  of  a  building,  and  sickness 
in  the  family  of  the  land  owner.  Hughes 
v.  Anderson,  68  Ala.  280  (1880);  Cen- 
tral of  Georgia  R.  Co.  v.  Windham,  126 
Ala.   552,   28   So.   392    (1900). 

III.      Permanent    or     Temporary 
Injury. 

A.      What   a    Permanent    Injury. 

Wherever  the  nuisance  or  cause  of  the 
injury  is  of  a  permanent  character  and 
its  construction  and  continuance  are 
necessarily  an  injury,  the  damage  is 
original  and  permanent,  and  may  be  at 
once  fully  compensated.  Chicago,  R. 
I.  &  P.  R.  Co.  v.  Davis,  principal  case; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Johnson,  p. 

,  vol.  3,  this  series ;  St.  Louis,  I.  M.  & 

S.  R.  Co.  v.  Morris,  35  Ark.  622  (1880)  ; 
Little  Rock  &  Ft.  S.  R.  Co.  v.  Chapman, 
39  Ark.  463,  43  Am.  Rep.  280  (1882); 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Biggs, 
52  Ark.  240,  12  S.  W.  331,  20  Am.  St. 
Rep.  174,  6  L.  R.  A.  804   (1889). 


The  overflowing  of  land  by  the  build- 
ing of  a  levee  occasions  a  permanent  in- 
jury. St.  Louis,  I.  M.  &,  S.  R.  Co.  v. 
Morris,  35  Ark.  622  (1880). 

The  erection,  construction  and  putting 
into  operation  of  a  railroad  causes  a  per- 
manent damage.  Chicago  &  E.  I.  R.  Co. 
v.  McAuley,   121    111.    160    (1887). 

A  railroad  embankment  closing  the 
natural  channel  of  a  stream  and  divert- 
ing water  from  adjoining  land  causes  a 
permanent  damage.  Stodghill  v.  Chi' 
cago,  B.  &  Q.  R.  Co.,  53  Iowa,  341 
(1880). 

The  erection  of  a  permanent  dam 
across  a  stream,  occasioning  the  water 
to  flow  back  upon  adjoining  premises, 
causes  a  permanent  injury.  Bizer  v. 
Ottumwa  H.  P.  Co.,  70  Iowa,  145  (1886) 

The  insufficiency  of  an  outlet  for  sur- 
face water  cut  in  a  railroad  embankment 
occasions  a  permanent  injury.  Haisch 
v.  Keokuk  &  D.  M.  R.  Co.,  71  Iowa  606 
(1887). 

Where  a  culvert  in  a  railroad  em- 
bankment was  so  placed  as  to  be  dan- 
gerous to  the  operation  of  the  road  and 
was  therefore  removed  to  a  place  less 
dangerous,  whereby  the  flooding  of  cer- 
tain premises  was  caused,  the  owner  of 
those  premises  was  entitled  to  elect  to 
consider  the  injury  a  permanent  one. 
Fossun  v.  Chicago,  M.  &  St.  P.  R.  Co., 
80  Minn.  9,  82  N.  W.  979    (1900). 

Where  the  wrong  which  occasions  the 
injury  is  one  springing  from  the  manner 
of  the  construction  of  the  road,  the  ad- 
joining  landowner    may    treat    the    act 


1910] 


C,  E.  I.  &  P.  Railway  Co.  v.  Davis. 


569 


or  channels,  did  not  overflow,  the  company  will  be  liable  to  such  pro- 
prietor for'  the  injury."  It  was  there  also  held  to  be  immaterial 
"whether  the  ditches  or  artificial  channels  be  constructed  or  made  on 
the  right  of  way  at  the  time  of  the  construction  of  the  road  as  a  part- 
thereof  or  afterwards  in  the  maintenance  and  operation  of  the  same." 
Further  in  this,  as  in  the  Johnson  case,  the  court  instructed  the  jury 
that  it  was  incumbent  upon  the  plaintiff  to  show  by  preponderance  of 
the  evidence  that  the  defendant  by  such  ditch  unnecessarily  turned  sur- 
face waters  upon  plaintiff's  land   in  unnecessarily   large   quantities   to 


of  the  railroad  company  as  a  permanent 
injury  and  recover  damages  accordingly. 
Chciago,  R.  I.  &  P.  R-  Co.  v.  Johnson, 
principal   case;    Chicago,   R.   I.   &  P.   R- 
Co.  v.  Davis,  p.  — ,  this  volume   (1910). 
Where  the  land  itself  is  actually  in- 
jured and  depreciated  in  value  by  the  act 
done,  no  assumption  in  reference  to  fu- 
ture  action  can  change  the  fixed  situa- 
tion and  render  that  which  is  in  fact  a 
permanent  injury  only  a  temporary  one 
in    law.      And    where,    if    the    cause    be 
removed    or    abated    as    a   nuisance,    the 
original   status   quo  cannot  be   restored, 
the  injury  is  permanent.     To  be  perma- 
nent it  is  not  necessary  that  it  strictly 
speaking  be  an  absolute  perpetuity  and 
positively  irremediable  in  the  last  degree. 
Permanency  in  the  legal  acceptation  of 
the  term   does  not   include  the   idea   of 
absolute,  but  one  of  practical,  irremedia- 
bility.     Coleman  v.   Bennett,    111   Tenn. 
705,  69  S.  W.  734   (1902). 

B.      But   One   Action    for    Permanent 
Injury. 

If  all  damages  that  may  ever  result 
are  in  law  the  result  of  its  construction 
as  an  original  wrong,  then  everything 
that  is  a  damage  in  legal  contemplation, 
whether  for  past  or  prospective  losses,  is 
recoverable  in  one  action.  Railroad  Co. 
v.  Cook,  57  Ark.  357,  21  S.  W.  1066 
(1893)  ;  St.  Louis  S.  R.  Co.  v.  Morris, 
76  Ark.  542,  89  S.  W.  846    (1905). 

Where  the  injury  is  permanent,  there 
can  be  but  one  recovery  of  damages,  and 
that  bars  all  others.     Atchison,  T.  &  S. 


F.   R.    Co.   v.   Jones,   110   111.   App.    626 
(1903). 

C.  What  a  Temporary  Injury. 
Where  there  is  no  change  of  condition 
in  the  surface  of  the  soil  or  no  perma- 
nent injury  to  the  land  itself,  it  cannot 
be  considered  a  permanent  injury.  Green 
v.  Taylor  B.  &  H.  R.  Co.,  79  Tex.  604, 
15  S.  W.  685    (1891). 

Where  the  only  injury  is  to  the  crops, 
and  there  is  no  damage  to  the  land  itself 
except  the  likelihood  of  future  overflows, 
the  damage  is  not  permanent.  Gulf  C. 
&  S.  F.  R.  Co.  v.  Haskell,  3  Tex.  Civ. 
App.  550,  23  S.  W.  546    (1893). 

Where  the  injury  is  not  permanent 
in  its  nature,  the  measure  of  damage  is 
the  diminution  in  the  rental  or  usable 
value  of  the  land  up  to  the  time  of  the 
commencement  of  the  suit.  Jungblum  v. 
Minneapolis,  N.  W.  &  S.  W.  R.  Co.,  70 
Minn.  153,  72  N.  W.  971  (1897);  Fos- 
sun  v.  Chicago,  M.  &  St.  P.  R.  Co.,  80 
Minn.  9,  82  N.  W.  979   (1900). 

For  a  temporary  injury  the  measure  is 
the  depreciation  in  the  rental  value,  if 
the  property  be  rented;  or  in  the  value 
of  the  use,  if  it  be  occupied  by  the  owner 
during  the  continuance  of  the  injury 
or  during  the  time  covered  by  the  suit. 
Illinois  Cent.  R.  Co.  v.  Nelson  (Ky.), 
127  S.  W.  520  (1910). 

D.      Successive   Actions  for  Continu- 
ing Injury. 

Where  injuries  result  from  time  to 
time  or  the  wrong  continues,  the  land- 


570 


"Water  and  Mineral  Cases. 


[Oklahoma 


plaintiff's  damage  and  injury,  in  order  to  have  a  recovery  against  the 
defendant. 

In  addition  to  the  cases  cited  in  that  case,  we  further  call  attention  to 
the  following  cases :  In  Ostrom  v.  Sills,  24  Ontario  Appeals,  526,  the 
court  said :  "The  doctrine  of  the  civil  law  has  not  been  adopted  by  the 
courts  of  this  province.  As  regards  mere  surface  water  precipitated 
from  the  clouds  in  the  form  of  rain  or  snow,  it  has  been  determined 
that  no  right  of  drainage  exists  jure  naturae,  and  that,  as  long  as  surface 
water  is  not  found  flowing  in  a  defined  channel  with  visible  edges  or 
banks   approaching  one   another   and   confining   the   water   therein,   the 


owner  is  entitled  to  bring  his  action  or 
actions  for  such  injuries.  Gulf  C.  & 
S.  F.  R.  Co.  v.  Helsley,  62  Tex.  59G 
(1884)  ;  Green  v.  Taylor  B.  &  H.  R.  Co., 
79  Tex.  604,  15  S.  W.  685  (1891). 

Where  the  structure  occasioning  the 
injury  is  permanent  in  its  character, 
not  necessarily  injurious,  but  may  or 
may  not  be  so,  the  injury  to  be  compen- 
sated is  the  injury  which  has  happened, 
and  there  may  be  as  many  successive  re- 
coveries as  there  are  successive  injuries. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Biggs. 
52  Ark.  240,  12  S.  W.  331,  20  Am.  St. 
Rep.  174,  6  L.  R.  A.  804  (1889);  Rail- 
way Company  v.  Cook,  57  Ark.  387,  21 
S.  W.  1066  (1893);  St.  Louis  L.  S.  R. 
Co.  v.  Morris,  76  Ark.  542,  89  S.  W. 
846   (1905). 

IV.      Actual    Damages   to   Commence- 
ment of  Action. 

Only  the  actual  damage  suffered  up 
to  the  time  of  the  commencement  of  the 
action  can  be  recovered.  Hughes  v.  An- 
derson, 68  Ala.  280  (18S0);  Central  of 
Georgia  R.  Co.  v.  Windham,  126  Ala. 
552,   28   So.   392    (1900). 

In  the  event  of  the  injury  of  crops 
by  an  overflow,  the  measure  of  damage 
is  the  sum  that  will  fairly  compensate 
the  owner  for  the  actual  value  of  the 
injury  or  damage  to  the  crop  or  any 
part  thereof.  Little  Rock  &  Ft.  S.  R. 
Co.  v.  Wallis,  82  Ark.  447,  102  S.  W. 
390    (1907). 

The  true  measure  of  damage  is  the 
injury  which   the  land   and   other  prop- 


erty sustains  from  the  successive  over- 
flows when  they  occurred.  Thus,  if  the 
crop  be  destroyed,  its  value  at  the  time 
of  its  destruction  is  the  true  measure; 
if  the  land  be  rendered  less  productive 
or  otherwise  injured,  such  sum  as  will 
be  a  just  compensation  for  the  injury 
inflicted  is  the  proper  measure.  Gulf 
C.  &  S.  F.  R.  Co.  v.  Helsley,  62  Tex. 
593    (1884). 

The  measure  of  damage  is  the  actual 
injury  which  the  evidence  may  show  the 
crops  have  actually  sustained  on  the 
land  at  the  times  overflows  may  have 
been  shown  to  have  occurred  by  reason 
of  the  construction  of  the  railroad. 
Green  v.  Taylor  B.  &  H.  R.  Co.,  79  Tex. 
604,  15  S.  W.  6S5   (1891). 

Under  the  Texas  statute,  making  rail- 
road companies  liable  for  failure  to  pro- 
vide sufficient  culverts,  etc.,  the  measure 
of  damage  is  the  extent  of  the  injury 
done  to  the  property,  irrespective  of  its 
condition  and  use  at  the  time  the  road 
was  constructed.  Texas  &  P.  R.  Co.  v. 
Whitaker,  36  Tex.  Civ.  App.  571,  82  S. 
W.  1051    (1904). 

The  actual  value  is  the  measure  of 
damage  for  crops  destroyed.  Gulf  C.  & 
S.  F.  R.  Co.  v.  Helsley,  62  Tex.  596 
(1884)  ;  Green  v.  Taylor  B.  &  H.  R.  Co., 
79  Tex.  604,  15  S.  W.  685  (1891). 

V.      Injury  to  Land  Itself. 

A.      Depreciation    in    Value. 

Where   the    injury   is    permanent,    the 

measure  of   damage  is   the  difference   in 

the  value  of  the  land  immediately  before 


1910] 


C,  R.  I.  &  P.  Railway  Co.  v.  Davis. 


571 


lower  proprietor  owes  no  servitude  to  the  upper  to  receive  the  natural 
drainage.  *  *  *  Generally  speaking,  the  upper  proprietor  may  dis- 
pose of  the  surface  water  upon  his  land  as  he  may  see  fit,  but  he  can- 
not, by  artificial  drains  or  ditches,  collect  it  or  the  water  of  stagnant 
pools  or  ponds  upon  his  premises,  and  cast  it  in  a  body  upon  the  pro- 
prietor below  him  to  his  injury.  He  cannot  collect  and  concentrate 
such  waters  and  pour  them  through  an  artificial  ditch  in  unusual  quan- 
tities upon  his  adjacent  proprietor."  In  Young  v.  Tucker,  26  Ontario 
Appeals,  169,  the  court  said:  "The  right  of  the  defendant  to  drain 
his  land  by  ditches  is  undoubted,  but  with  this  right  is  the  correlative 


and  immediately  after  the  injury,  that 
is,  the  depreciation  in  the  market  value 
caused  by  the  injury.  Louisville,  N.  A. 
&  C.  R.  Co.  v.  Sparks,  12  Ind.  App.  410, 
40  N.  E.  546  (1895);  Illinois  Cent.  E. 
Co.  v.  Nelson  (Ky.),  127  S.  W. 
520  (1910);  Fossun  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  80  Minn.  9,  82  N.  W.  979 
(1900);  Fremont  &  M.  V.  R.  Co.  v. 
Harlin,  50  Neb.  698,  70  N.  W.  263,  61 
Am.  St.  Rep.  578,  36  L.  R.  A.  417 
(1897)  ;  Chicago,  B.  &  Q.  R.  Co.  v.  Em- 
mert,  53  Neb.  237,  73  N.  W.  540,  68  Am. 
St.  Rep.  602  (1897);  Coleman  v.  Ben- 
nett, 111  Tenn.  705,  69  S.  W.  734 
(1902);  Tyrus  v.  Kansas  City,  Ft.  S. 
&.  M.  R.  Co.,  114  Tenn.  579,  86  S.  W. 
1074  (1905);  San  Antonio  &  A.  P.  R. 
Co.  v.  Mohl  (Tex.  Civ.  App.),  37 
S.  W.  22  (1896)  ;  St.  Louis  S.  W.  R.  Co. 
v.  Terhune  (Tex.  Civ.  App.),  94 
S.  W.  381  (1906);  Missouri,  K.  &  T. 
P.  R.  Co.  of  Texas  v.  Green,  44  Tex.  Civ. 
App.  247,  99  S.  W.  573  (1907);  Mis- 
souri, K.  &  T.  R.  Co.  of  Texas  v.  Chilton. 
52  Tex.  Civ.  App.  516,  118  S.  W.  779 
(1910). 

The  measure  of  damages  for  the  over- 
flow of  land  by  means  of  an  open  ditch 
is  the  difference  in  value  of  the  land 
with  the  ditch  open  and  with  it  closed. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Ander- 
son, 62  Ark.  360,  35  S.  W.  791   (1896). 

Ordinarily  the  measure  of  damages 
from  an  overflow  caused  by  an  im- 
properly constructed  embankment  is  the 
loss  to  the  owner  from  each  successive 
flood;    but    if   the    injury   be   permanent 


and  to  the  land  itself,  the  measure  is 
the  difference  in  value  of  the  land  im- 
mediately before  and  immediately  after 
the  inundation.  Owens  v.  Missouri  P. 
R.  Co.,  67  Tex.  679,  4  S.  W.  593  (1887). 
Where  a  part  of  the  land  is  rendered 
useless  and  the  value  of  the  whole  im- 
paired, the  measure  of  damage  is  the 
value  of  the  property  immediately  be- 
fore and  immediately  after  the  occur- 
rence of  the  injury.  Texas  Cent.  R.  Co. 
v.  Clifton,  2  Tex.  Civ.  App.  Cas.  (Will- 
son)   433,  §  489   (18S4). 

B.      Time    Considered. 

The  difference  in  the  value  of  the  land 
before  the  building  of  the  road  and  the 
value  after  the  injury  is  not  a  correct 
measure  of  damage.  Gulf  C.  &  S.  F.  R. 
Co.  v.  Helsley,  62  Tex.  593   (1884). 

The  measure  of  damage  for  injury  to 
land  is  the  difference  between  the  mar- 
ket value  thereof  immediately  before  and 
immediately  after  the  injury,  and  not 
the  value  before  and  after  the  construc- 
tion of  the  road.  Texas  &  P.  R.  Co.  v. 
Ford  (Tex.  Civ.  App.),  117  S.  W.  201 
(1909). 

C.  Crop  as  Part  of  Land. 
The  crop  should  be  considered  as  part 
of  the  realty,  and  therefore  the  measure 
of  damages  for  the  overflow  of  land 
and  destruction  of  a  crop  is  the  differ- 
ence in  the  value  of  the  land  immedi- 
ately before  and  immediately  after  the 
inundation.  Drake  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  63  Iowa  302,  19  N.  W.  215 
(1884). 


572 


"Water  and  Mineral  Cases. 


[Oklahoma 


obligation  to  so  construct  them  as  to  conduct  the  water  which  may  be 
carried  thereby  to  a  proper  and  sufficient  outlet,  so  that  the  water  which 
may  be  discharged  therefrom  will  do  no  injury  to  other  proprietors. 
Anything  short  of  this  must,  I  think,  be  regarded  as  negligence  for 
which  the  defendant  would  be  answerable.  The  governing  principle  in 
cases  such  as  this  is  that  one  cannot  prevent  injury  to  his  own  property 
by  transferring  that  injury  to  his  neighbor's  property."  The  case  of 
Whalley  v.  Lancashire  &  Yorkshire  R.  W.  Co.  (1884),  13  Q.  B.  D.  131, 
which  is  cited  in  the  Johnson  case,  is  also  quoted  at  length  with  approval 
by  the  court  in  Young  v.  Tucker,  supra.     In  Savannah,  A.  &  M.  R.  v. 


An  injury  to  a  growing  crop  is  an  in- 
jury to  the  land,  and  it  is  therefore 
proper  to  consider  the  same  in  fixing  the 
damage  done  to  the  land.  Ft.  Worth  & 
D.  L.  R.  Co.  v.  Scott,  2  Tex.  Civ.  App. 
Cas.  (Willson)    137,  §  143   (1884). 

D.   Actual    Damage   or  Compensation. 

Where  the  injury  is  occasioned  by  the 
collecting  of  surface  water  and  discharg- 
ing of  the  same  upon  certain  lands,  the 
measure  of  damages  is  not  the  differ- 
ence in  value  of  the  land  before  and 
after  the  injury,  but  the  actual  damage 
which  has  been  suffered.  Ready  v.  Mis- 
souri P.  R.  Co.,  98  Mo.  App.  467,  72  S. 
W.   142    (1903). 

Where  a  landowner  grants  right  of 
way  to  a  railroad  company  upon  stipula- 
tion that  there  shall  be  no  overflow  of 
the  balance  of  his  land,  the  actual  dam- 
age suffered  is  the  true  measure.  Sa- 
bine &  T.  R.  Co.  v.  Joachimi,  58  Tex. 
456    (1883). 

In  an  action  for  damages  for  flooding 
land  with  surface  water  by  reason  of  de- 
fective construction  of  a  railroad,  the 
measure  of  damage  is  the  value  of  the 
crops  destroyed  and  of  the  trees  killed. 
Fremont  &  M.  V.  R.  Co.  v.  Harlin,  50 
Neb.  698,  70  N.  W.  263,  61  Am.  St.  Rep. 
578,  36  L.  R.  A.  417    (1S97). 

Where  land  has  been  rendered  less 
productive  or  otherwise  injured,  the 
measure  of  damage  is  a  fair  compensa- 
tion for  the  loss  sustained.  Gulf  C.  & 
S.    F.    R.    Co.    v.    Helsley,    62    Tex.    596 


(1884)  ;  Green  v.  Taylor  B.  &  H.  R.  Co., 
79  Tex.  604,  15  S.  W.  685    (1891). 

VI.      Destruction  of  Growing  Crop. 

A.      Value  at  Time  and  Place  of 

Destruction. 
The  weight  of  authority  seems  to  hold 
that  the  measure  of  damages  for  the 
destruction  of  a  growing  crop  is  its  mar- 
ket value  at  the  time  and  place  of  its 
destruction,  considering  all  the  existing 
circumstances,  and  while  some  author- 
ities give  as  the  measure  of  damage  the 
value  of  the  crop  when  matured  and 
ready  for  market,  less  the  expense  of 
cultivating,  harvesting,  preparing  for 
market,  etc.,  it  will  be  found  that  most 
of  these  cases  merely  state  a  rule  of  evi- 
dence or  means  of  arriving  at  the  value 
at  the  time  of  destruction;  other  cases 
give  as  the  measure  the  difference  in 
value  of  the  land  with  and  without  the 
destroyed  crop,  but  here  again  the  result 
is  tne  same,  the  value  at  the  time  of 
destruction.  The  measure  of  damages 
for  the  destruction  of  a  growing  crop 
is  its  fair  and  reasonable  market  value 
at  the  time  of  its  destruction  as  shown 
by  all  the  existing  circumstances.  Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Johnson,  p. 
,  vol.  3,  this  series. 

Illinois. — Ohio  M.  R.  Co.  v.  Neutzel, 
43  111.  App.  108  (1 891— reversed,  but  not 
on  this  point,  143  111.  46,  32  N.  E.  529— 
1892)  ;  Baltimore  &  0.  S.  R.  Co.  v. 
Stewart,    128   111.   App.   270    (1906). 

Iowa. — Delshmutt  v.  Chicago,  B.  &  Q. 
R.  C.   (Iowa),  126  N.  W.  359    (1910). 


1910] 


C,  R.  I.  &  P.  Railway  Co.  v.  Davis. 


573 


Buford,  106  Ala.  303,  17  South.  395,  Chief  Justice  Brickell,  in  speak- 
ing for  the  court,  said:  "The  wrong  intended  to  be  guarded  against 
is  the  diversion  of  water,  causing  it  to  flow  upon  the  lands  of  another 
without  his  will,  which  did  not  naturally  flow  there;  and  it  is  not 
deemed  material  whether  the  water  is  diverted  from  a  running  stream, 
or  is  surface  water  caused  to  flow  where  it  did  not  flow  before.  Farris 
v.  Dudley,  78  Ala.  124,  56  Am.  Rep.  24;  Crabtree  v.  Baker,  75  Ala.  91, 
51  Am.  Rep.  424;  Nininger  v.  Norwood,  72  Ala.  277,  47  Am.  Rep.  412; 
Hughes  v.  Anderson,  68  Ala.  280,  44  Am.  Rep.  147;  Mayor  v.  Jones, 
58  Ala.  654 ;  Mayor  v.  Coleman,  58  Ala.  570 ;  City  Council  v.  Gilmer,  33 


Kentucky. — Madisonville,  H.  &  E.  R. 

Co.   v.    Cates,    138   Ky.   257,    127    S.   W. 

988    (1910). 

Minnesota. — Byrne    v.    Minneapolis    & 

St.  L.  R.  Co.,  38  Minn.  212,  36  N.  W. 

339    (1888)  ;   Burnett  v.  Great  Northern 

R.    Co.,    76   Minn.    461,    79    N.    W.    523 
(1899);    Lommeland  v.   St.   Paul,   M.   & 

M.  K.  Co.,  35  Minn.  412,  25  N.  W.  119 
(1886). 
Nebraska. — Chicago,  B.  &  Q.  R.  Co.  v. 

Emmert,  53  Neb.  237,  73  N.  W.  540,  68 

Am.    St.    Rep.    602     (1897);    Berard    v. 

Atchison  &  N.  R.  Co.,  79  Neb.  830,  113 

N.  W.  537   (1907)  ;  Smith  v.  Chicago,  B. 

&  Q.  R.  Co.,  81  Neb.  186,  115  N.  W.  755 
(1908)  ;  Pribbeno  v.  Chicago,  B.  &  Q.  R. 

Co.,  81  Neb.  657,  116  N.  W.  494  (190S)  ; 

Morse  v.    Chicago,   B.   &   Q.   R.   Co.,   81 

Neb.  745,  116  N.  W.  859   (190S). 

Texas.— Gulf    C.    &    S.    F.    R.    Co.    v. 

Hedrick  (Tex.),  7  S.  W.  353  (1887); 
Trinity  &  S.  R.  Co.  v.  Schofield, 
72  Tex.  496,  10  S.  W.  575  (1889)  ;  Sa- 
bine &  E.  T.  R.  Co.  v.  Smith,  73  Tex.  1, 
11  S.  W.  123  (1889)  ;  Ft.  Worth  &  D.  L. 
R.  Co.  v.  Scott,  2  Tex.  Civ.  App.  Cas. 
(Willson)  137,  §  143  (1884);  Mis- 
souri P.  R.  Co.  v.  Johnson,  3  Tex.  Civ. 
App.  Cas.  (Willson)  334,  §  276  (1887); 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Borsky, 
2  Tex.  Civ.  App.  545,  21  S.  W.  1011 
(1893);  Galveston,  H.  &  S.  A.  R.  Co. 
v.  Ryan  (Tex.  Civ.  App.),  21  S.  W. 
1013  (1893)  ;  Gulf  C.  &  S.  F.  R.  Co.  v. 
Haskell,  3  Tex.  Civ.  App.  550,  23  S.  W. 
546  (1893)  ;  Gulf  C.  &  S.  F.  R.  Co.  v. 
Nicholson      (Tex.     Civ.     App.),     25     S. 


W.  54  (1894);  Gulf  C.  &  S.  F.  R. 
Co.  v.  Carter,  5  Tex.  Civ.  App.  675,  25 
S.  W.  1023  (1S94);  International  &  G. 
N.  R.  Co.  v.  Foster,  45  Tex.  Civ.  App. 
334,  100  S.  W.  1017  (1907).  And  not 
necessarily  the  rental  value  of  the  land. 
Byrne  v.  Minneapolis  &  St.  L.  R.  Co., 
38  Minn.  212,  36  N.  W.  339  (1888). 

Considering  all  the  circumstances  at 
that  time  existing  or  existing  at  any 
time  prior  to  the  trial  as  bearing  upon 
the  probability  that  the  crop  would  at- 
tain a  more  valuable  condition,  with 
legal  interest  from  the  date  of  destruc- 
tion. St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Yarborough,    56    Ark.    612,    20    So.    515 

(1892)  ;  St.  Louis,  M.  &  S.  A.  R.  Co.  v. 
Lyman,    57    Ark.    512,    22    S.    W.    170 

(1893)  ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Hardie,    87    Ark.    475,    113    S.    W.    31 

(1908);  St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  Paup  (Ark.)  22  S.  W.  213 
(1893).  As  shown  by  the  estimates  of 
competent  witnesses.  Gulf  C.  &  S.  F.  R. 
Co.  v.  Calhoun  (Tex.  Civ.  App),  24 
S.  W.  362  (1893).  With  the  value  of 
the  right  to  harvest  and  market  it  at 
the  proper  time.  St.  Louis  M.  B.  T.  R. 
Assoc,  v.  Schultz,  226  111.  409,  80  N.  E. 
879  (1907),  affirming  126  111.  App.  552 
(1906).  With  legal  interest  to  time  of 
trial.  Trinity  &  S.  R.  Co.  v.  Schofield, 
72  Tex.  496,  10  S.  W.  575  (1889)  ;  Kan- 
sas City,  M.  &  O.  R.  Co.  v.  Mayfield 
(Tex.  Civ.  App.),  107  S.  W.  940  (1908). 
But  to  ascertain  this  value,  evidence  of 
the  probable  yield  if  not  destroyed  will 
be  considered.     Chicago,  B.  &  Q.  R.  Co. 


574 


Water  and  Mineral  Cases. 


[Oklahoma 


Ala.  116,  70  Am.  Dec.  562.  In  Hughes  v.  Anderson,  supra,  it  was  said 
by  Stone,  J.,  after  a  statement  of  the  general  doctrine  as  we  have  ex- 
pressed it,  that  it  could  not  be  'enforced,  in  the  strict  letter,  without 
impeding  agricultural  progress,  and  without  hindering  industrial  enter- 
prises. Hence,  minor  individual  interest  is  sometimes  made  to  yield  to 
a  large  and  paramount  good.'  But  in  this  connection  he  further  ob- 
served: 'This,  however,  must  be  weighed  and  decided  with  a  proper 
reference  to  the  value  and  necessity  of  the  improvement  of  the  superior 
heritage  contrasted  with  the  injury  to  the  inferior,  and  even  this  li- 
cense must  be  conceded  with  great  caution  and  prudence.'     This  case 


v.  Schaffer,  26  111.  App.  280  (1887). 
Taking  all  proper  expenses  from  the 
value  of  the  probable  yield  when  ma- 
tured. Missouri,  K.  &  T.  R.  Co.  v. 
Hagler  (Tex.  Civ.  App.),  112  S. 
W.  783  (1908);  Missouri,  K.  &  T.  R. 
Co.  v.  Riverhead  Farm,  53  Tex.  Civ.  App. 
643,  117  S.  W.  1049  (1909).  And  evi- 
dence of  the  cost  to  put  in  and  culti- 
vate such  crop  up  to  the  time  of  destruc- 
tion is  not  admissible,  as  the  value  to  be 
determined  depends  upon  the  present 
condition  and  future  prospects  of  the 
crop.  Chicago  &  E.  R.  Co.  v.  Barnes, 
10  Ind.  App.  460,  38  N.  E.  428  (1894). 
But  evidence  of  the  values  of  crops  of 
that  variety  after  maturity  in  that  year 
is  admissible.  Gulf  C.  &  S.  F.  R.  Co. 
v.  McGovern,  73  Tex.  355,  111  S.  W. 
336    (1889). 

In  action  for  damages  for  flooding 
premises  by  improper  embankment,  the 
following  instruction  was  held  proper; 
"The  court  instructs  the  jury  that  if 
you  find  for  the  plaintiff,  then  you  will 
assess  his  damages  at  a  sum  that  will 
fairly  compensate  him  for  the  actual 
value  of  the  crops  at  the  time  of  their 
destruction,  with  six  per  cent,  interest 
thereon  from  the  date  of  such  destruc- 
tion, in  the  event  you  should  find 
from  the  evidence  that  the  said  crops 
or  any  part  thereof  were  destroyed.  And 
in  the  event  you  should  find  from  the 
evidence  that  said  crops  or  any  part 
thereof  were  injured  and  damaged  by 
such  overflow,  then  you  will  find  in  favor 
of  the  plaintiff  in  a  sum  that  will  fairly 


compensate  him  for  the  actual  value  of 
such  injury  or  damage  to  such  crop  or 
any  part  thereof."  Little  Rock  &  Ft. 
S.  R.  Co.  v.  Wallis,  82  Ark.  447,  102  S. 
W.  390    (1907). 

B.      Probable    Yield,     Deducting     Ex- 
pense. 

Measure  of  damage  for  destruction  of 
growing  crop  is  the  probable  yield  under 
proper  cultivation.  The  value  of  such 
yield  when  matured  and  ready  for  sale, 
and  also  the  expense  of  producing  the 
crop,  harvesting  it,  and  preparing  it  for 
and  transferring  it  to  market  should  be 
considered.  Galveston,  H.  &  S.  A.  R.  Co. 
v.  Borsky,  2  Tex.  Civ.  App.  545,  21  S.  W. 
1011   (1893). 

The  difference  between  the  probable 
crop  which  would  have  been  produced 
and  the  expense  of  maturing,  preparing 
for  market  and  marketing  the  same,  is 
the  measure  of  damages  for  crops  de- 
stroyed. San  Antonio  &  A.  R.  Co.  v. 
Kirsey  (Tex.  Civ.  App.),  81  S.  W. 
1045    (1904). 

It  is  permissible  as  a  means  of  arriv- 
ing at  the  value  of  a  growing  crop  to 
prove  its  probable  yield  under  proper 
cultivation,  the  value  of  such  yield  when 
matured  and  ready  for  sale,  and  also 
the  expense  of  such  cultivation  as  well 
as  the  cost  of  its  preparation  and  trans- 
portation to  market.  The  difference  be- 
tween the  value  of  the  probable  crop  in 
the  market  and  the  expense  of  maturing 
and  placing  it  there  in  most  cases  will 
give  the  value  of  the  growing  crop  with 


1910] 


C,  E.  I.  &  P.  Railway  Co.  v.  Davis. 


575 


does  not  involve  a  discussion  or  consideration  of  this  limitation  of  the 
general  doctrine;  for  it  is  settled  by  the  current  and  weight  of  authority 
that  a  railroad  company  has  no  more  right  to  obstruct  the  natural  flow 
of  water  by  an  embankment,  or  other  artificial  means,  or  by  the  collec- 
tion of  it  into  an  artificial  channel,  forcing  or  conducting  it  to  a  dis- 
charge upon  the  lands  of  another,  than  it  has,  in  the  same  way,  to  dis- 
pose of  water  from  water  courses,  and  it  is  liable  for  the  resulting 
damage  in  the  one  case  as  in  the  other.  Waterman  v.  Railroad  Co.,  30 
Vt.  610,  73  Am.  Dec.  326;  Railroad  Co.  v.  Morrison,  71  111.  616;  Rail- 
road Co.  v.  Cox,  91  111.  500;  Railroad  Co.  v.  Hays,  11  Lea  [Tenn.]  382, 


as  much  certainty  as  can  be  attained  by 
any  other  method.  Chicago,  R.  I.  &  P. 
R.  Co.  v.  Johnson,  p.  — ,  vol.  3,  this  series. 

In  ascertaining  the  value  of  a  growing 
crop  at  the  time  of  its  destruction,  con- 
siderable latitude  of  inquiry  is  permissi- 
ble from  the  nature  of  the  case.  The 
estimate  must  be  based  largely  upon  the 
condition,  stage  of  growth,  and  promise 
of  the  grain,  and  the  capacity  of  the 
land  to  produce  crops.  Consideration 
must  also  be  given  to  the  average  pro- 
duct or  yield  of  like  crops  upon  the 
same  and  other  lands  in  the  neighbor- 
hood under  like  circumstances  and  con- 
ditions, and  also  the  average  market 
value  of  such  grain  within  reasonable 
limitations  as  to  time  and  the  expense  of 
harvesting  and  marketing,  to  be  submit- 
ted to  the  jury  under  proper  instruc- 
tions by  the  court.  Lommeland  v.  St. 
Paul,  M.  &  M.  R.  Co.,  35  Minn.  412,  25 
N.   W.   119    (1886). 

In  the  case  of  the  International  &  G. 
N.  R.  Co.  v.  Pape,  73  Tex.  501,  11  S.  W. 
526  (1889),  the  court  said:  "It  seems  to 
us  that  as  a  general  rule  the  most  satis- 
factory means  of  arriving  at  the  value 
of  a  growing  crop  is  to  prove  its  probable 
yield  under  proper  cultivation,  the  value 
of  such  yield  when  matured  and  ready 
for  sale,  and  also  the  expense  of  such 
cultivation,  as  well  as  the  cost  of  its 
preparation  and  transportation  to  mar- 
ket. The  difference  between  the  value  of 
the  probable  crop  in  the  market  and  the 
expense  of  maturing,  preparing,  and 
placing  it  there  will,  in  most  cases,  give 


the  value  of  the  growing  crops  with  as 
much  certainty  as  can  be  attained  by  any 
other  method." 

In  Railway  Co.  v.  Lyman,  57  Ark. 
512,  22  S.  W.  170  (1893),  the  court 
said:  "Under  the  ruling  next  com- 
plained of,  the  plaintiff  was  permitted 
to  give  in  evidence  his  opinion  as  to  the 
value  of  the  crops  at  the  time  of  their 
destruction,  and  to  state  as  the  basis  of 
his  valuation  the  usual  yield  of  the 
lands  in  crop  seasons  similar  to  that 
of  1888.  The  witness  being  a  farmer, 
his  opinion  was  admissible  to  prove  the 
value  of  the  crop,  and  it  was  proper  to 
permit  him  to  state  the  facts  from  which 
his  conclusion  was  arrived  at,  as  these 
would  aid  the  jury  in  determining 
whether  his  estimate  was  correct. 
*  *  *  While  the  damages  recover- 
able could  not  exceed  the  actual  value 
of  the  crops  at  the  date  of  the  injury, 
with  legal  interest,  it  was  not  improper 
that  the  jury  in  estimating  that  value 
should  consider  the  probable  value  at 
maturity,  if  they  believed  from  the  evi- 
dence that  the  crops  would  have  ma- 
tured but  for  their  loss  in  the  manner 
alleged   in  the  complaint." 

In  the  case  of  Colorado  Consol.  L.  & 
W.  Co.  v.  Hartman,  5  Colo.  App.  150,  38 
Pac.  62  (1894),  the  court  said:  "But 
in  order  to  establish  the  value  at  the 
time  of  the  destruction,  courts  are  com- 
pelled to  resort  to  several  methods  of 
computation,  and  either  or  all  combined 
may  afford  a  fair  basis.  One  method 
might  be  a  year's  rental  value,  with  the 


576 


Water  and  Mineral  Cases. 


[Oklahoma 


47  Am.  Rep.  291 ;  Railroad  Co.  v.  Davis,  68  Md.  281,  11  Atl.  822,  6  Am. 
St.  Rep.  440;  Austin  &  N.  W.  Ry.  Co.  v.  Anderson,  79  Tex.  427,  15 
S.  W.  484,  23  Am.  St.  Rep.  350;  Railway  Co.  v.  Mossman,  90  Tenn. 
157,  16  S.  W.  64,  25  Am.  St.  Rep.  670."  See,  also,  Ala.  Great  South.  R. 
Co.  v.  Prouty,  149  Ala.  71,  43  So.  354.  In  G.,  C.  &  S.  F.  Ry.  Co. 
v.  Helsley,  62  Tex.  596,  the  court  said:  "Even  by  courts  which  follow 
what  is  considered  the  common-law  rule,  if  surface  water  is  collected 
into  artificial  channels  and  thereby  in  increased  quantities  thrown  upon 
the  land  of  another,  the  person  who  causes  this  to  be  done  will  be  liable 
for  such  injury  as  results."     In  Kelly  v.  Kansas  City  Southern  R.  Co., 


cost  of  planting  and  bringing  forward 
tbe  crop  until  the  time  of  its  loss; 
another,  what  the  crop  would  bring  in  its 
immature  state  at  a  sale;  and,  a  third, 
the  proof  of  the  average  yield  and  the 
market  value  of  crops  of  the  same  kind 
planted  and  cared  for  in  the  same  man- 
ner, less  the  cost  of  maturing,  harvest- 
ing and  marketing.  While  neither  would 
afford  positive  proof,  they  would  all 
seem  to  be  proper,  and  the  only  way  by 
which  a  jury  could  get  the  necessary 
data  upon  which  to  base  a  verdict.  The 
question  to  be  determined  by  the  jury 
was  the  value  of  the  crop  at  the  time  of 
the  destruction.  The  supposed  error, 
and  the  only  one  relied  upon,  was  allow- 
ing witnesses  to  testify  how  much  per 
acre  the  said  crops  were  worth  in  their 
condition  and  stage  of  growth  upon  the 
land  at  the  time  of  the  alleged  destruc- 
tion thereof.  There  does  not  appear  to 
have  been  any  objection  to  the  witnesses 
for  lack  of  knowledge  or  for  incompe- 
tency; no  objection  that  a  proper  foun- 
dation had  not  been  laid.  From  all  that 
appears,  the  true  value  might  be  ar- 
rived at  directly  in  this  way.  If  such 
was  the  case,  it  would  be  much  more 
satisfactory  than  by  any  other  method." 
In  the  case  of  Lommeland  v.  St.  Paul, 
M.  &  M.  R.  Co.,  35  Minn.  412,  29  N.  W. 
119  (1886),  the  court  said:  "In  ap- 
plying this  rule  a  considerable  latitude 
of  inquiry  is  permissible,  from  the 
nature  of  the  case.  The  estimate  must 
be  based  largely  upon  the  condition, 
stage    of    growth,    and    promise    of    the 


grain,  and  the  capacity  of  the  land  to 
produce  crops;  and  in  addition  to  the 
opinions  of  witnesses  qualified  to  speak 
in  reference  to  the  extent  of  the  injury 
and  of  the  value  of  the  growing  crop  in 
its  then  condition,  we  think  it  would  be 
proper  to  receive  evidence  of  the  average 
product  or  yield  of  like  crops  upon  the 
same  and  other  lands  in  the  neighbor- 
hood under  like  circumstances  and  con- 
ditions, and  also  the  average  market 
value  of  such  grain,  within  reasonable 
limitations  as  to  time,  and  the  expense 
of  harvesting  and  marketing,  to  be  sub- 
mitted to  the  jury  under  proper  instruc- 
tions by  the  court.  If  the  estimates  are 
extravagant,  the  evidence  may  be  sifted 
upon  cross-examination  and  controvert- 
ed by  witnesses." 

It  is  only  where  the  crop  is  fully  ma- 
tured and  ready  to  be  harvested  that  the 
damage  can  be  determined  by  the  market 
value  of  the  crop,  less  the  cost  of  har- 
vesting and  marketing,  which  must  in- 
clude all  care  and  preparation  for  mar- 
ket, such  as  threshing,  packing,  crating, 
baling  and  the  like,  according  to  the  na- 
ture of  the  crop.  Baltimore  &  0.  S.  R. 
Co.  v.  Stewart,  123  111.  App.  270  (1906). 

What  the  destroyed  crop  would  have 
produced  had  it  survived  until  harvest 
time  is  not  a  proper  measure  of  dam- 
age. Gulf  C.  &  S.  F.  R.  Co.  v.  Holliday. 
62   Tex.   512    (1886). 

The  value  of  a  crop  that  would  or 
might  have  been  grown  except  for  the 
overflow,  when  ready  for  market,  with- 
out   deducting    therefrom    the     cost     of 


1910] 


C,  R.  I.  &  P.  Railway  Co.  v.  Davis. 


577 


92  Ark.  465,  123  S.  W.  664,  the  court  said:  "If  a  railroad  company  at- 
tempts to  alter  the  course  of  the  natural  drainage  of  a  tract  of  land,  it 
must  provide  sufficient  means  for  the  escape  of  the  flow  of  such  water. 
If  the  railroad  company  attempts  to  gather  up  the  water  into  ditches,  it 
is  bound  to  care  for  it  so  that  it  will  not  do  an  injury  to  an  abutting 
owner." 

The  question  as  to  the  recovery  of  prospective  losses  also  arises.  In 
St.  L.,  I.  M.  &  S.  R.  Co.  v.  Biggs,  52  Ark.  240,  12  S.  W.  331,  6  L.  R.  A.  804, 
20  Am.  St.  Rep.  174,  the  late  Judge  Sandels,  in  speaking  for  the  court 
said:     "The  rules  applicable  to  the  recovery  of  damages  for  the  con- 


producing,  maturing,  harvesting,  and 
marketing  cannot  constitute  the  meas- 
ure of  damages.  International  &  G.  N. 
R.  Co.  v.  Pape,  73  Tex.  501,  11  S.  W. 
526    (1889). 

C.      Rental   Value  or  Value     of   Use. 

Where  the  damage  consists  in  the 
destruction  of  a  growing  crop  too  young 
to  have  a  market  value,  and  the  sea- 
son will  not  permit  the  planting  of 
another  crop,  the  rental  value  of  the 
land  is  the  measure  of  damages.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Saunders, 
85  Ark.  Ill,  107  S.  E.  194   (1908). 

Where  the  crop  has  been  planted,  but 
is  not  up,  the  measure  of  damage  is 
the  rental  value  of  the  land  and  the 
cost  of  the  seeding  and  labor.  Ohio  & 
M.  R.  Co.  v.  Neutzel,  43  111.  App.  108 
(1891;  reversed,  but  not  on  this  point, 
143  111.  46,  32  N.  E.  529—1892)  ;  Balti- 
more &  0.  S.  W.  R.  Co.  v.  Stewart,  12S 
111.    App.    270    (1906). 

Where  the  crop  is  up,  but  not  so  far 
matured  that  the  product  can  be  fairly- 
determined,  the  measure  of  damage  is 
the  rental  value,  with  the  cost  of  pre- 
paring the  ground,  planting  the  crop, 
and  the  labor  bestowed  upon  it.  Balti- 
more &  O.  S.  W.  R.  Co.  v.  Stewart,  128 
111.  App.  270    (1906). 

Where  the  owner  cultivates  the  land 
himself,  the  measure  of  damage  for  the 
destruction  of  immature  crops  is  the 
difference  between  the  value  of  lands 
with  the  crops  growing  thereon  prior 
to  the  flooding  and  its  value  in  the  con- 
W.  &  M—  37 


dition  it  is  after  the  flood.  Jefferis  v. 
Chicago  &  N.  W.  R.  Co.,  147  Iowa  124, 
124  N.  W.  367    (1910). 

For  the  destruction  of  an  immature 
crop  the  measure  of  damages  is  the 
rental  value,  together  with  the  cost  of 
fertilization,  of  preparation  for  plant- 
ing, cultivation  of  the  crop,  value  of 
services  in  overlooking  the  same,  and  in- 
terest on  the  amount  lost  from  the  time 
of  the  injury  to  the  verdict.  Lamphy  v. 
Atlantic  C.  L.  R.  Co.,  63  S.  C.  462,  41 
S.   E.   517    (1902). 

Where  no  crop  has  been  raised  by 
reason  of  an  overflow,  the  measure  of 
damage  is  the  rental  value  of  the  land, 
and  this,  although  it  be  in  possession  of 
a  tenant  required  to  pay  as  rent  a  por- 
tion of  the  crops.  Quinn  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  23  S.  D.  126,  120  N. 
W.   884    (1909). 

VII.      Injury    to    Crop. 

A.      Partial  Destruction. 

Where  land  has  been  flooded  and 
parts  of  it  rendered  unfit  for  cultivation, 
the  measure  of  damage  is  the  rental 
value  of  the  land  so  unfit  for  cultiva- 
tion, the  extra  cost  of  planting  and 
working  a  crop,  less  the  cost  of  har- 
vesting such  part  as  is  lost  and  the 
cost  of  reclearing  the  land.  St.  Louis, 
I.  M.  &  S.  R.  Co.  v.  Hardie,  87  Ark. 
475,   113  S.  W.  31    (1908). 

Where  a  partial  crop  is  harvested,  the 
measure  of  the  damage  is  the  difference 
between  the  value  of  that  crop  and  of 
the  crop  which  would  have  been  made 


578 


Water  and  Mineral  Cases. 


[Oklahoma 


struction  and  continuance  of  nuisances  in  cases  of  this  kind  are  stated 
satisfactorily  to  this  court  by  numerous  authorities,  as  follows:  When- 
ever the  nuisance  is  of  a  permanent  character  and  its  construction  and 
continuance  are  necessarily  an  injury,  the  damage  is  original,  and  may 
be  at  once  fully  compensated.  In  such  case,  the  statute  of  limitations 
begins  to  run  upon  the  construction  of  the  nuisance.  *  *  *  But, 
when  such  structure  is  permanent  in  its  character,  and  its  construction 
and  continuance  are  not  necessarily  injurious,  but  may  or  may  not  be 
so,  the  injury  to  be  compensated  in  a  suit  is  only  the  damage  which  has 
happened ;  and  there  may  be  as  many     successive  recoveries  as  there  are 


except  for  the  injury,  deducting  there- 
from the  difference  between  the  cost  of 
producing  and  gathering  the  part  of  the 
crop  harvested  and  the  crop  which  would 
have  been  made.  Jonesboro,  L.  C.  &  E. 
R.  Co.  v.  Cable,  89  Ark.  518,  117  S.  W. 
550    (1909). 

B.      Where   Only    Damaged. 

Where  part  of  a  matured  crop  is  de- 
stroyed, the  value  of  such  part  at  the 
nearest  market,  deducting  the  reasonable 
expense  of  getting  it  there,  is  the  proper 
measure  of  damage.  Kansas  City  M.  & 
O.  R.  Co.  v.  Mayfield  (Tex.  Civ.  App.),. 
107  S.  W.  940   (1908). 

The  measure  of  damages  where  the 
crop  is  partially  but  not  wholly  de- 
stroyed, is  the  difference  between  its 
market  value  if  it  had  one  as  it  stood, 
immediately  preceding  and  its  market 
value  immediately  following  the  injury, 
with  legal  interest  on  the  amount  of 
such  difference.  When  a  matured  crop 
is  totally  destroyed,  the  damages  may 
be  determined  from  evidence  showing  its 
value  at  the  nearest  market  and  the  rea- 
sonable expense  of  getting  it  to  such 
market.  Kansas  City  M.  &  0.  R.  Co.  v. 
Mayfield  (Tex.  Civ.  App.),  107  S.  W. 
940    (1908). 

Where  a  partial  crop  is  raised,  the  re- 
covery is  confined  to  the  excess  of  what 
would  have  been  made  had  a  full  crop 
been  had  over  that  which  was  made. 
Texas  &  N.  0.  R.  Co.  v.  Ochiltree  (Tex. 
Civ.  App.),  127  S.  W.  584   (1910). 


For  injury  to  growing  crops  measure 
of  damage  is  the  value  of  the  crops  with 
and  without  the  injury.  Louisville,  N. 
A.  &  C.  R.  Co.  v.  Sparks,  12  Ind.  App. 
410,  40  N.  E.  546    (1895). 

Where  the  land  is  not  owned  by  the 
owner  of  the  crops,  the  measure  of  dam- 
age is  the  reasonable  market  value  of 
the  crops  as  standing,  immediately  be- 
fore and  immediately  after  the  injury, 
taking  into  consideration  the  right  to 
market  and  harvest  crop,  and  is  not 
limited  to  the  difference  in  value  of  the 
leasehold  interest  before  and  after  the 
injury.  Jefferis  v.  Chicago  &  N.  W.  R. 
Co.,  147  Iowa  124,  124  N.  W.  367  (1910). 

Where  damage  to  a  crop  only  is 
claimed  and  not  to  the  soil,  either  because 
of  injury  to  it  in  connection  with  a  per- 
manent or  perennial  crop  thereon,  there 
is  no  good  reason  for  not  estimating  the 
damage  to  such  directly  rather  than  in- 
directly, by  estimating  the  value  of  the 
land  with  it  before  and  after  the  in- 
jury. Necessarily  such  difference  is  the 
difference  between  the  value  of  the  grow- 
ing crop  thereon  before  and  after  the 
injury,  and  the  same  result  is  reached. 
The  circumstance  that  growing  crops  or- 
dinarily are  regarded  as  part  of  the 
realty  is  not  controlling,  and  in  meas- 
uring the  damages  thereto  the  value  of 
the  land  is  not  involved.  Tretter  v. 
Chicago  G.  W.  R.  Co.,  147  Iowa  375, 
126  N.  W.   339    (1910). 

Where  growing  crops  are  injured,  but 
not  destroyed,  the  measure  of  damage  is 
their    depreciation    in    value.      Madison- 


1910] 


C,  R.  I.  &  P.  Railway  Co.  v.  Davis. 


579 


successive  injuries."  In  Railway  Company  v.  Cook,  57  Ark.  387,  21 
S.  W.  1066,  the  court  said:  "If  all  damages  that  may  ever  result  from 
the  nuisance  are  in  law  the  result  of  its  construction  as  an  original 
wrong,  then  everything  that  is  a  damage  in  legal  contemplation,  whether 
for  past  or  prospective  losses,  is  recoverable  in  one  action;  but  if  the 
wrong  be  continuing,  and  the  injuries  successive,  the  damage  done  by 
each  successive  injury  may  be  recovered  in  successive  suits,  and 
the  injury  to  be  compensated  in  the  original  suit  is  only  the  dam- 
age that  has  happened."  In  St.  L.  Southwestern  R.  Co.  v.  Mor- 
ris,  76   Ark.    542,    89    S.    W.    846,    the   court    said:     "Wood  on  Limi- 


ville,  H.  &  E.  R.  Co.  v.  Cates,  138  Ky. 
257,  127  S.  W.  988    (1910). 

The  measure  of  damage  for  the  injury 
to  a  growing  crop  is  the  difference  in 
value  immediately  before  and  immedi- 
ately after  the  injury,  and  this  is  con- 
fined to  the  very  time  and  place  and 
does  not  extend  to  the  time  of  maturity 
or  to  the  place  of  usual  market.  Sabine 
&  T.  R.  Co.  v.  Joachimi,  58  Tex.  456 
(1883). 

Where  crops  are  damaged  or  partially 
destroyed,  the  measure  is  the  difference 
between  their  actual  value  immediately 
before  and  immediately  after  the  injury. 
Gulf  C.  &  S.  F.  R.  Co.  v.  Nicholson 
(Tex.   Civ.  App.),  25   S.  W.   54    (1894). 

The  measure  of  damage  for  the  in- 
jury to  a  growing  crop  is  the  difference 
between  the  reasonable  market  value  at 
maturity  of  the  crop  that  would  have 
been  raised  if  the  injury  had  not  oc- 
curred and  the  reasonable  value  at  ma- 
turity of  the  crop  actually  raised,  less 
the  reasonable  value  of  the  additional 
work  and  expense  which  would  have  been 
incurred  in  raising  and  marketing  the 
whole  crop.  Missouri,  K.  &  T.  R.  Co. 
v.  Gilbert  (Tex.  Civ.  App.),  124  S.  W. 
434   (1910). 

VIII.      Perennial  Crops. 

"We  see  no  reason  to  doubt  that  the 
actual  loss  of  the  perennial  crop  of  grass 
was  susceptible  of  being  proved  and 
measured  with  reasonable  certainty. 
Whether  the  damages  might  have  been 
measured  by  the  diminution  of  the  rental 


value  if  the  case  had  been  presented 
upon  that  theory,  we  need  not  deter- 
mine." Byrne  v.  Minneapolis  &  St.  L. 
R.  Co.,  38  Minn.  212,  36  N.  W.  339,  8 
Am.   St.  Rep.  668    (1888). 

Measure  of  damages  for  grass  pas- 
ture destroyed  is  fair  value  of  the 
timothy  and  clover  constituting  the  pas- 
ture at  the  time  of  its  destruction. 
Chicago,  B.  &  Q.  R.  Co.  v.  Ernmert,  53 
Neb.  237,  73  N.  W.  540,  68  Am.  St.  Rep. 
602    (1897). 

Where  the  planting  of  a  perennial  crop 
such  as  alfalfa  will  increase  the  value 
of  the  land,  it  is  proper  to  show  the 
value  with  and  without  such  planting. 
Moss  v.  Chicago,  B.  &  Q.  R.  Co.,  81  Neb. 
745,   116  N.  W.  859    (1908). 

As  the  seeding  of  land  to  alfalfa  and 
such  like  perennial  crops  is  often  a 
hazardous  process,  resulting  in  failure, 
it  is  much  safer  to  take  as  the  measure 
of  damages  the  value  of  the  land  before 
and  after  the  destruction  of  such  crop 
than  to  take  the  cost  of  again  seeding 
the  land.  Moss  v.  Chicago,  B.  &  Q.  R. 
Co.,  81  Neb.  745,  116  N.  W.  859   (1908). 

The  measure  of  damages  for  the  de- 
struction of  a  perennial  crop  of  grass  is 
its  value  at  the  time  of  destruction. 
Broussard  v.  Sabine  &  E.  T.  R.  Co.,  80 
Tex.  329,   16  S.  W.  30    (1891). 

But  where  the  injury  is  of  such  a 
character  as  to  prevent  the  growth  of 
grass  and  to  deprive  the  owner  of  the 
use  of  his  pasture  for  a  considerable 
time,  the  most  certain  and  correct  dam- 
ages would  be  the  value  of  the  use  for 


580 


Water  and  Mineral  Cases. 


[Oklahoma 


tations  (3d  Ed.  §  180)  says:  'But  while  this  is  the  rule  as  to  nui- 
sances of  a  transient  rather  than  of  a  permanent  character,  yet,  when 
the  original  nuisance  is  of  a  permanent  character,  so  that  the  damage 
inflicted  hereby  is  of  a  permanent  character,  and  goes  to  the  destruc- 
tion of  the  estate  thereby,  or  will  be  likely  to  continue  for  an  indefinite 
period,  and  during  its  existence  deprived  the  landowner  of  any  beneficial 
use  of  that  portion  of  his  estate,  a  recovery  not  only  may,  but  is,  deemed 
to  be  original ;  and  as  the  entire  damage  accrues  from  the  time  the 
nuisance  is  created,  and  only  one  recovery  may  be  had,  the  statute  of 
limitations  begins  to  run  from  the  time  of  its  erection  against  the  owner 


such  time  for  purposes  of  pasturage  in 
the  condition  it  would  have  been  had 
there  been  no  overflow,  there  being  no 
permanent  injury  to  the  land  itself. 
Sabine  &  E.  T.  R.  Co.  v.  Broussard,  69 
Tex.  617,  7  S.  W.  347  (1888);  Brous- 
sard v.  Sabine  &  E.  T.  R.  Co.,  80  Tex. 
329,  16  S.  W.  30    (1891). 

IX.      Other    Matters   Considered. 

A.  Several  Crops  in  Same  Year. 
Where  more  than  one  crop  is  de- 
stroyed on  the  same  land  during  the 
same  year,  by  overflows,  the  measure  of 
damages  is  the  actual  value  of  each  crop 
at  the  time  of  its  destruction,  regardless 
of  the  value  of  other  crops  destroyed  or 
of  other  crop  or  crops  that  may  have 
been  raised  during  the  year.  Galveston, 
H.  &  S.  A.  R.  Co.  v.  Parr,  8  Tex.  Civ. 
App.   280,   28   S.  W.   264    (1894). 

B.  All    Parts  of  Crop  Considered. 

All  parts  of  the  crop  destroyed  should 
be  considered.  Thus,  as  seed  is  a  part  of 
the  cotton  crop,  the  values  that  would 
have  been  obtained  for  such  should  be 
considered.  St.  Louis  S.  W.  R.  Co.  v. 
Jenkins  (Tex.  Civ.  App.),  89  S.  W.  1106 
(1905). 

C.  Damage  to   Crop  and   to   Land 

Proved  Separately. 

The  damage  done  to  the  land  itself 
and  that  to  the  crops  should  be  sepa- 
rately proved.  Louisville,  N.  A.  &  C.  R. 
Co.  v.  Sparks,  12  Ind.  App.  410,  40  N. 
E.   546    (1895). 

Where  both    land    and    crops    are    in- 


jured, it  is  better  to  ascertain  the 
amount  of  the  damage  to  the  land  and 
that  to  the  crops  separately,  taking  the 
sum  thereof  as  the  damages.  Interna- 
tional &  G.  N.  R.  Co.  v.  Pape,  73  Tex. 
501,   11  S.  W.  526    (1889). 

X.      Interest. 

Where  crop  is  destroyed  by  overflow 
from  the  improper  construction  of  a 
railroad,  the  injured  landowner  ought, 
so  far  as  money  can  accomplish  it,  be 
put  in  the  same  condition  as  he  would 
have  been  had  the  injury  not  occurred, 
and  interest  on  the  value  of  the  crop  de- 
stroyed from  the  date  of  its  destruction 
is  as  necessary  as  the  value  of  the  crop 
itself.  Gulf  C.  &  S.  F.  R.  Co.  v.  Holli- 
day,   65  Tex.   512    (1886). 

In  addition  to  the  other  damges,  in- 
terest from  the  time  of  the  injury  may 
be  allowed. 

Arkansas. — St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  Paup  (Ark.),  22  S.  W.  213 
(1893);  St.  Louis,  I.  M.  &  S.  A.  R. 
Co.  v.  Lyman,  57  Ark.  512,  22  S.  W. 
170  (1893)  ;  St.  Louis,  I.  M.  &  S.  R.  Co. 
v.  Yarborough,  58  Ark.  612,  20  S.  W. 
515  (1894)  ;  Little  Rock  &  Ft.  S.  R.  Co. 
v.  Wallis,  82  Ark.  447,  102  S.  W.  390 
(1907)  ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Harder,  87  Ark.  475,  113  S.  W.  31 
(1908). 

New  York. — McCormick  v.  Pennsyl- 
vania C.  R.  Co.,  49  N.  Y.  303    (1872). 

South  Carolina. — Lamphy  v.  Atlantic 
C.  L.  R,  Co.,  63  S.  C.  462,  41  S.  E.  517 
(1902). 


1910] 


C,  E.  I.  &  P.  Railway  Co.  v.  Davis. 


581 


of  the  estate  or  estates  affected  thereby."  This  rule  has  been  repeatedly 
followed  and  applied  according  to  the  facts  in  each  case  by  the  Supreme 
Court  of  Arkansas.  St.  L.,  I.  M.  &  S.  R.  Co.  v.  Yarborough,  56  Ark. 
612,  20  S.  W.  515;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Anderson,  62  Ark. 
360,  35  S.  W.  791 ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Stephens,  72  Ark.  127, 
78  S.  W.  766;  St.  Louis  Southwestern  R.  Co.  v.  Morris,  76  Ark.  542,  89 
S.  W.  846;  Chicago,  R.  I.  &  P.  R.  Co.  v.  McCutchen,  80  Ark.  235,  96 
S.  W.  1054;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hoshall,  82  Ark.  387,  102 
S.  W.  207;  Turner  v.  Overton  et  al.,  86  Ark.  406,  in  S.  W.  270,  20 
L.  R.  A.  (N.  S.)  894.     The  Supreme  Court  of  Alabama  is  in  harmony 


Texas. — Sabine  &  E.  T.  R.  Co.  v. 
Joachimi,  58  Tex.  456  (1883);  Galves- 
ton, H.  &  S.  A.  R.  Co.  v.  Home,  69 
Tex.  643,  9  S.  W.  940  (1888);  Trinity 
&■  S.  R.  Co.  v.  Schofield,  72  Tex.  496,  10 
S.  W.  575  (1889)  ;  Gulf  C.  &  S.  F.  R. 
Co.     v.      Calhoun      (Tex.     Civ.     App.), 

24  S.  W.  362  (1893);  Missouri,  K. 
&  T.  R.  Co.  v.  Pfluger   (Tex.  Civ.  App.), 

25  S.  W.  792  (1894);  Texas  &  St.  L. 
R.  Co.  v.  Reid,  1  Tex.  Civ.  App.  Cas. 
(White  &  W.)   120   (1882). 

XI.      Sickness  in   Family. 

Where  the  overflow  causes  pools  of 
stagnant  water  to  form  on  the  premises 
of  a  landowner,  causing  sickness  in  his 
family,  damages  may  include  the  in- 
juries to  health,  loss  of  services  of 
minor  children,  and  the  expenses  in- 
curred thereby.  Lockell  v.  Ft.  Worth. 
R.  G.  R.  Co.,  78  Tex.  211,  14  S.  W.  564 
(1890). 

Where  as  the  result  of  negligence  in 
construction  by  a  railroad  company, 
stagnant  water  is  accumulated  upon  the 
premises  of  a  landowner  and  sickness  in 
his  family  results  from  the  malarial 
poisons  arising  therefrom,  he  is  entitled 
to  recover  for  such  sickness,  and  his  ex- 
penses incurred  thereby.  Central  of 
Oorgia  R.  Co.  v.  Windham,  126  Ala. 
252,  28  So.  392  (1900)  ;  San  Antonio  & 
A.  R.  Co.  v.  Gwynn  (Tex.),  15  S.  W. 
509   (1891). 

Where  the  overflow  causes  pools  of 
stagnant  water  to  form  under  or  near 
the  house  of  a  landowner,  causing  sick- 


ness in  his  family,  such  sickness  may  be 
taken  into  consideration  in  estimating 
the  damages.  Gulf  C.  &  S.  F.  R.  Co.  v. 
Richard,  11  Tex.  Civ.  App.  95,  32  S.  W. 
96    (1895). 

XII.      Obviation     of    Cause. 

A.  Where  Cause  Can  Be  Removed 
or   Injury   Remedied. 

Where  the  damage  is  caused  by  a  de- 
fective construction  which  may  be 
remedied,  it  is  but  temporary,  and  the 
diminished  rental  value  or  usable  value 
is  the  proper  measure  of  damages.  Kan- 
sas City,  F.  &  S.  M.  R.  Co.  v.  Cook,  57 
Ark.  387,  21  S.  W.  1066  (1893);  St. 
Louis  &  S.  R.  Co.  v.  Mackey  (Ark.), 
129  S.  W.  78  (1910).  And  not  the 
depreciation  in  the  salable  value  of  the 
land.  Kansas  City,  F.  &  S.  M.  R.  Co. 
v.  Cook,  57  Ark.  381,  21  S.  W.  1066 
(1893). 

Where  the  cause  of  the  damage  is  tem- 
porary, and  can  be  remedied,  the  meas- 
ure is  the  rental  or  usable  value  of  the 
land  and  the  market  value  of  the  per- 
sonal property  destroyed,  or  the  dimin- 
ished value  of  such  if  it  be  only  dam- 
aged. St.  Louis  &  S.  R.  Co.  v.  Mackey, 
(Ark.),   129   S.  W.   78    (1910). 

The  injury  cannot  be  considered  per- 
manent where  the  overflow  is  caused  by 
a  failure  to  make  proper  openings  for 
the  escape  of  the  water,  if  upon  the 
making  of  such  openings  the  injury 
ceases,  and  hence  in  such  case  the  meas- 
ure of  damages  would  be  the  value  of 
the  use  of  the  land  up  to  the  time  of  the 


582 


Watek  and  Mineral  Cases. 


[Oklahoma 


with  Arkansas  on  this  question.  In  Savannah,  A.  &  M.  R.  v.  Buford, 
supra,  the  court  said :  "The  roadbed  and  embankment  are  permanent 
and  continuous  structures ;  and  if  their  erection  had  given  the  plaintiff 
a  cause  of  action,  and  then  all  the  damage  which  could  have  resulted  had 
resulted,  the  statute  of  limitations  would  have  commenced  to  run  from 
the  time  of  their  completion.  But  if  the  thing  complained  of  is  not 
necessarily  injurious,  or  is  not  an  invasion  of  the  rights  of  another,  of 
itself  affording  no  cause  of  action,  then  whatever  of  legal  injury  may 
result  from  it  furnishes  a  cause  of  action  accruing  when  the  injury  oc- 
curs, and  then  the  statute  of  limitations  commences  to  run,  and  there 


commencement  of  the  action,  and  not 
the  difference  in  the  market  value  of  the 
land  before  and  after  the  injury.  South- 
ern R.  Co.  v.  Poetker  (Ind.  App.),  91 
N.  E.  610    (1910). 

Where  the  flooding  may  cease  at  any 
time  or  be  abated  as  a  nuisance,  by  the 
judgment  of  a  competent  court,  the  in- 
jury is  not  considered  permanent,  and 
the  measure  of  damage  is  that  actually 
suffered  and  includes  any  and  all  result- 
ing injuries,  such  as  the  destruction  of 
grass,  damage  to  buildings,  etc.  Ready 
v.  Missouri  P.  R.  Co.,  98  Mo.  App.  467, 
72  S.  W.  142    (1903). 

Where  the  basis  of  recovery  is  the 
difference  in  the  value  of  the  land  be- 
fore and  after  the  construction  of  a  rail- 
road, it  is  necessary  in  considering  such 
depreciation  to  take  into  account  the 
question  whether  the  injury  could  be 
obviated  in  whole  or  in  part  by  expending 
money  to  remove  the  obstruction.  When 
there  is  a  permanent  injury  that  cannot 
be  remedied,  of  course  the  measure  is  the 
depreciation  in  the  value  of  the  property 
injured,  but  when  the  cause  of  injury 
may  be  removed  at  a  reasonable  ex- 
pense by  the  party  injured,  that  fact 
should  be  considered.  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Carey,  90  111.  514  (1878)  ; 
Kankakee  &  S.  R.  Co.  v.  Horan,  22  Til. 
App.  145   (1886). 

B.      Cost   of    Removal    as    Measure   of 
Damage. 

Measure  of  damages  to  implanted  land 
is  the   cost   and   expense  of   restoring  it 


to  its  condition  before  the  injury,  and 
the  loss  occasioned  by  being  deprived  of 
its  use,  with  legal  interest.  Sabine  &  T. 
R.  Co.  v.  Joachimi,  58  Tex.  456    (1883). 

C.      Contra. 

Measure  of  damage  is  the  value  of 
the  crop  destroyed,  and  not  the  cost  of 
removal  of  the  cause  of  the  damage, 
where  to  effect  such  removal  the  plain- 
tiff must  necessarily  become  a  trespasser. 
Cincinnati,  I.  &  W.  N.  R.  Co.  v.  Ward, 
120  111.  App.  212   (1905). 

The  expense  which  would  be  incurred 
to  improve  the  property  and  prevent  a 
recurrence  of  the  injury  is  not  a  proper 
measure  of  damages.  New  York,  P.  &  N. 
R.  Co.  v.  Jones,  94  Md.  24,  50  Atl.  423 
(1901). 

D.      Prevention    of    Injury    by    Land- 
owner. 

If  the  landowner  could  have  prevented 
the  damage  by  a  reasonable  effort,  he 
is  barred  from  a  recovery.  Atchison,  T. 
&  S.  F.  R.  Co.  v.  Jones,  110  111.  App. 
626   (1903). 

The  landowner  is  bound  to  protect 
himself  against  the  damage  where  he 
can  do  so  by  a  reasonable  effort  and  at 
small  expense,  as  where  by  the  construc- 
tion of  a  ditch  on  his  own  land  at  a 
small  expense  the  injury  could  be  ob- 
viated, it  is  his  duty  to  construct  such 
ditch.  Southern  H.  Co.  v.  Poetker 
(Ind.  App.),   91   N.   E.   610    (1910). 

Landowner  is  not  required  to  take 
steps  to  minimize  the  damage,  as  he  owes 


1910]  C,  R.  I.  &  P.  Railway  Co.  v.  Davis. 

2T«  -S:  *VV^cTE1  its 
ST-St w.  *!  ^~*# -££  so3  £  s 

&  WesTern  Ry   Co.,  39  W.  Va.  196,  19  S.  E.  521,  ^  L-  R-  A-  ^74,  45 


no  duty  to  the  railroad  company  to  per- 
form its  obligation  to  take  care  of  the 
water.  Madisunville,  H.  &  E.  R.  Co.  v. 
Gates,    138    Ky.    257,     127     S.    W.     988 

(1910).  ,      . 

The  digging  of  a  ditch  at  a  cost  of 
about  three  hundred  dollars  is  not  an  "or- 
dinary effort  and  cost"  or  a  nominal  cost. 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Borsky, 
2  Tex.  Civ.  App.  545,  21  S.  W.  1011 
(1893). 

XIII.  Speculative  Damages. 
A  showing  that  by  reason  of  the  inun- 
dation of  his  land  a  certain  amount  had 
been  lost  by  the  owner  because  of  his 
inability  to  grow  crops  as  well  as  by 
crops  destroved,  is  too  uncertain  and 
speculative  as  a  measure  of  damages. 
New  York,  P.  &  N.  R-  Co.  v.  Jones,  94 
Md.  24,  50  Atl.  423    (1901). 

The  loss  of  profits  by  delay  in  getting 
a  crop  to  market  is  not  a  proper  meas- 
ure of  damages.  Sabine  &  T.  K.  Co.  v. 
Joachimi,  58  Tex.  456   (1883). 

What  the  plaintiff  might  have  made 
had  he  planted  another  crop  is  too  un- 
certain to  base  any  estimate  upon  as  to 
an  amount  to  deduct  from  the  actual 
damage.  Gulf  0.  &  S.  P.  R  Co.  v. 
Holliday,  62  Tex.  512    (1886). 


XIV.  Punitive  Damages. 
Where  the  cause  of  the  damage  is  an 
act  wantonly  or  negligently  done,  puni- 
tive damages  may  be  recovered.  Central 
of  Georgia  R.  Co.  v.  Windham,  126  Ala. 
552,  28   So.   392    (1900). 


Where    a   railroad   company   is   guilty 
of  gross  negligence  or  wantonness  in  the 
maintenance  of   drains,   culverts,  etc.,  it 
is  liable  for  punitive  as  well  as  actual 
damages.     Central  of  Georgia  R.   Co.  v. 
Keyton  (not  reported;  see  148  Ala.  675), 
41 "So.  918    (1906). 
XV.      Double  Damages  Prohibited. 
Where  the  complaint  is  that  the  land 
had   beem   rendered    incapable    of    produ- 
cing as  full  crops  as  it  did  before,  the 
owner  cannot  recover  for  the  injury  to 
the  land  and  also  for  failure  of  the  crop, 
as     this    would    be    warranting    double 
damages.    Illinois  Cent.  R.  Co.  v.  Miller, 
68   Miss.   760,   10   So.   61    (1901). 

There  cannot  be  a  recovery  for  both 
the  value  of  the  land  and  damages  for 
crops  not  planted,  as  such  would  be  per- 
mitting a  double  recovery  for  the  same 
wrong.  Yazoo  &  M.  V.  R.  Co.  v.  Darden, 
(Miss.),    34  So.  386   (1903). 

XVI.  Source  of  Liability  Imma- 
terial. 
It  makes  no  difference  in  the  measure 
of  damage  whether  the  railroad  com- 
pany is  obligated  by  contract  to  keep 
culverts,  etc.,  open  or  where  its  liability 
is  by  law  independent  of  contract.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Hardie,  87 
Ark.  475,  113  S.  W.  31    (1908). 

As  to  the  liability  of  a  railroad  com- 
panv  for  the  diversion  of  surface  waters, 
see  note  to  Chicago,  R.  I.  &  P-  *•  Co.  v. 

Johnson,  p. ,  vol.  3,  this  series 

As  to  the  liability  of  a  railroad  com- 
pany for  the  diversion  of   surface  waters, 


584 


Water  and  Mineral  Cases. 


[Oklahoma 


Am.  St.  Rep.  894 ;  Austin  &  N.  W.  Ry.  Co.  v.  Anderson,  79  Tex.  427, 
15  S.  W.  484,  23  Am.  St.  Rep.  350 ;  C,  C.  &  S.  F.  R.  Co.  v.  Helsley,  62 
Tex.  593. 

The  instructions  as  to  compensation  for  damages  seem  to  be  in  accord 
with  the  rule  announced  by  Judge  Sandels  in  the  Biggs  case,  and  to  be 
in  harmony  with  the  weight  of  authority. 

It  follows  that  the  judgment  of  the  lower  court  must  be  affirmed. 

All  the  Justices  concur  except  KANE,  J.,  who  dissents. 


being  measured  by  the  same  rule  applied 
to  individuals,  see  part  V,  note  to  Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Johnson,  p. 
,  vol.  3,  this  series. 

As  to  effect  of  manner,  etc.,  of  con- 
struction of  road  upon  liability  for  di- 
version of  surface  waters,  see  part  VII, 
note  to  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Johnson,  p.  ,  vol.  3,  this  series. 

As  to  obligation  to  place  culverts, 
etc.,  for  escape  of  surface  water,  see 
par.  7,  part  VII,  note  to  Chicago,  R.  I. 

&  P.  R.   Co.  v.  Johnson,  p.  ,  vol.  3, 

this  series. 

As  to  liability  for  failure  to  maintain 
drains,  culverts,  etc.,  for  escape  of  sur- 
face waters,  see  part  X,  note  to  Chicago, 

R.  I.  &  P.  R.  Co.  v.  Johnson,  p.  , 

vol.  3,  this  series. 

As  to  liability  where  damage  is  caused 
by  extraordinary  storm,  see  part  XI, 
note  to  Chicago,  R.  I.  &  P.  R.  Co.  v.  John- 
son, p.  ,  vol.  3,  this  series,  and  part 

XII,  note  to  Kramer  v.  City  of  Los  Ange- 
les, p. ,  vol.  2,  this  series. 

As  to  the  effect  of  right  of  way  being 
acquired  by  condemnation  or  purchase 
upon  liability  of  railroad  company  for 
diversion  of  surface  waters,  see  part  VI 
to  note  to  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Johnson,  p.  ,  vol.  3,  this  series. 


As  to  all  damages  occasioned  by  con- 
struction of  railroad  being  presumed 
paid  in  award  upon  condemnation,  see 
par.   1,  part  VI,  note    to    Chicago,  R.  I. 

&  P.  R.  Co.  v.  Johnson,  p.  ,  vol.  3, 

this  series. 

As  to  surface  waters  in  general  and 
the  laws  fixing  rights  and  governing  lia- 
bilities with  reference  thereto,  see  note 

to   Harris  v.   Boutwell,   p.   ,   vol.   2, 

this   series. 

As  to  the  right  of  drainage  of  domi- 
nant on  to  servient  estate,  and  increas- 
ing burden  of  servitude,  see  note  to  Har- 
ris v.  Boutwell,  p. ,  vol.  2,  this  series. 

As  to  diversion  of  a  stream  by 
riparian  owner  on  his  own  land,  see 
note  to  Cook  v.  Seaboard  Air  Line  R. 
Co.,  p.  ,  vol.  3,  this  series. 

As  to  liability  of  municipal  corpora- 
tions for  damages  in  the  construction 
and  maintenance  of  sewers,  see  note  to 

Kramer  v.  City  of  Los  Angeles,  p.  , 

vol.  2,  this  series. 

As  to  measure  of  damage  in  action 
against  municipal  corporation  for  neg- 
ligence in  construction  or  maintenance 
of  sewers,  see  part  XIII,  note  to  Kramer 

v.    City    of   Los    Angeles,    p.    ,    vol. 

2,  this  series. 


1911] 


Haeper  v.  Hill  et  al. 


585 


HARPER  v.  HILL  et  al. 


[Supreme  Court  of  California,  January  11,   1911.] 


—  Cal.  —,113  Pac.  162. 

1.  Mining  Claim — Mistaken   Location   of  Apex. 

One  who  locates  a  mining  claim  in  good  faith  is  protected  in  his  possession  of  the 
surface  marked  out,  although  subsequent  developments  show  his  location  of  the 
apex  of  the  vein  to  have  been  erroneous. 

2.  Same — Discovery  of  Mineral   a  Prerequisite. 

A  discovery  of  valuable  mineral  within  the  located  boundaries  is  a  prerequisite  to 
a  valid  mineral  location  upon  the  public  lands. 

3.  Pleading — Forfeiture  of  Claim  Shown  without  Pleading. 

Where  a  claim  under  another  location  is  set  up  under  the  general  issue  in  denial 
of   title,   evidence   showing   its   forfeiture   is   admissible  without   pleading   it. 

4.  Estoppel — Facts   Must  Be  Pleaded. 

The  facts  constituting  an  estoppel  in  pais  must  be  specially  pleaded. 

In  Bank.  Appeal  from  Superior  Court,  Eldorado  County ;  N.  D.  Arnot, 
Judge. 

Action  to  recover  possession  of  a  mining  claim  by  H.  A.  Harper  against 
Seymour  Hill  and  another.  Judgment  for  plaintiff  and  order  denying 
new  trial.    Defendants  appeal.    Reversed. 

For  appellant— W.  J.  McGee,  Wm.  E.  Colby,  and  Geo.  H.  Thompson. 

For  respondent — Chas.  A.  Swisler. 

SHAW,  J.  The  defendants  have  appealed  from  the  judgment 
and  also  from  an  order  denying  their  motion  for  a  new  trial. 

The  plaintiff  sued  to  recover  possession  of  a  mining  claim  known  as 
the  "Santa  Ynez  gold  mine."  The  principal  controversy  is  in  regard 
to  the  respective  rights  of  the  plaintiff  and  defendants  to  the  southerly 
part  of  said  Santa  Ynez  claim  which  overlaps  the  northerly  part  of  a  min- 
ing claim  located  by  the  defendants  known  as  the  "Lookout  quartz  claim." 
The  defendants  also  claim  practically  the  whole  of  the  surface  of  the 
Santa  Ynez  gold  mine  by  virtue  of  a  certain  alleged  mining  location 


NOTE. 

As  to  rights  of  parties  where  the 
location  crosses  the  lode,  see  notes  to 
Argentine  Mining  Co.  v.  Terrible  Mining 


Co.,  17  Mor.  Min.  Rep.  109.  Neces- 
sity for  and  effect  of  discovery  of 
mineral  on  mining  location,  see  note  to 
Charlton  v.  Kelly,  ante,  p.  493. 


586  Water  and  Mineral  Cases.  [California 

known  as  the  "Mountain  View  quartz  claim."  These  claims  of  defend- 
ants were  asserted  in  a  cross-complaint.  It  is  also  claimed  that  defend- 
ants had  a  right  to  the  ground  under  a  location  in  1896  of  a  claim  called 
the  "Success"  mine.  The  court  found  that  the  locations  of  the  Mountain 
View  quartz  claim  and  the  Success  claim  were  invalid  and  that  the  plain- 
tiff was  entitled  to  the  ground  within  the  Santa  Ynez  gold  mine  which 
overlapped  the  Lookout  quartz  claim,  and  gave  judgment  accordingly. 
All  the  claims  in  question  were  located  upon  public  lands  of  the  United 
States. 

We  will  first  consider  the  respective  rights  to  the  ground  within  the 
overlapping  limits  of  the  Lookout  and  Santa  Ynez  claims.  The  Look- 
out claim  was  located  and  marked  on  the  ground  in  1889  by  the  defend- 
ants, and  ever  since  that  time  they  have  claimed  possession  of  it  and 
have  done  the  work  required  by  law.  The  Santa  Ynez  was  located  and 
marked  by  the  plaintiff  on  September  21,  1904.  His  claim  of 
right  to  include  in  it  a  part  of  the  ground  covered  by  the  Lookout  claim 
is  based  on  the  theory  that  the  southerly  line  of  the  latter  is  situated  more 
than  300  feet  from  the  actual  line  of  the  apex  of  the  Lookout  lode  or 
vein.  The  facts  appear  to  be  that  in  1889,  when  the  defendants  made 
the  original  discovery  and  location  of  the  Lookout  mine,  they  put  monu- 
ments at  each  end  of  the  claim  at  the  place  where  they  then  believed  the 
apex  of  the  vein  to  be.  Corners  were  marked  at  each  end  at  a  distance 
of  300  feet  from  the  end  center  naonuments  so  placed,  thus  marking  a 
claim  1,500  feet  long  and  600  feet  wide,  as  the  law  provides  and  allows. 
At  the  trial  evidence  was  introduced  tending,  as  it  is  claimed,  to  prove 
that  the  monument  so  placed  at  the  center  of  the  east  end  of  the  claim 
had  not  been  placed  on  the  apex  of  the  Lookout  vein,  but  was  located 
some  23  feet  south  of  said  apex.  The  findings  describe,  as  the  true  line 
of  the  apex,  a  line  running  from  the  east  line  westerly  through  the 
claim.  This  line  at  its  easterly  end  lies  northerly  of  the  line  indicated 
as  such  by  the  original  center  end  monuments.  The  court  below  was  of 
the  opinion  that  the  actual  line  of  the  apex  as  disclosed  by  the  evidence 
at  the  trial  should  control  the  boundaries  of  the  claim,  that  the  defend- 
ants had  the  right  to  only  three  hundred  feet  south  of  that  line  on  the 
surface,  and  that,  as  the  original  southerly  line  was  located  more  than 
that  distance  from  the  true  line  of  the  apex  of  the  vein,  such  original 
line  must  be  drawn  in  and  the  excess  given  to  the  plaintiff  under  his  later 
location.  The  main  question  is  whether  the  surface  location  and  bound- 
aries of  a  mining  claim  are  to  be  determined  by  the*  position  of  the 
apex  of  the  vein  as  it  is  ascertained  and  marked  on  the  ground,  in  good 
faith,  at  the  time  the  claim  is  originally  located  and  marked,  or  by  the 
real  position  of  such  apex  as  it  may  be  subsequently  proven  to  be,  in  a 
trial  with  an  adjoining  claimant. 


1911]  Hakper  v.  Hill  et  al.  587 

Section  2320  of  the  United  States  Revised  Statutes  (U.  S.  Comp.  St. 
1901,  p.  1424),  so  far  as  material  to  the  question,  is  as  follows:  "A 
mining-claim  located  after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  whether  located  by  one  or  more  persons,  may  equal,  but  shall 
not  exceed,  one  thousand  five  hundred  feet  in  length  along  the  vein  or 
lode ;  but  no  location  of  a  mining-claim  shall  be  made  until  the  discovery 
of  the  vein  or  lode  within  the  limits  of  the  vein  located.  No  claim  shall 
extend  more  than  three  hundred  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface.  *  *  *  The  end  lines  of  each  claim  shall  be  paral- 
lel to  each  other."  Section  2322  (page  1425)  provides  that  the  locators 
of  a  mining  location  "on  any  mineral  vein,  lode,  or  ledge,"  on  the  public 
domain,  so  long  as  they  comply  with  the  laws  of  the  United  States  and 
local  regulations  consistent  therewith,  "shall  have  the  exclusive  ri^ht  of 
possession  and  enjoyment  of  all  the  surface  included  within  the  lines  of 
their  location,  and  of  all  veins,  lodes  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  extended 
downward  vertically"  although  below  the  apex,  such  veins,  lodes,  or 
ledges  may  diverge  beyond  the  side  line  planes,  but  not  where  they  go  out- 
side the  end  line  planes.  Section  2324  (page  1426)  provides  that  "the 
location  must  be  distinctly  marked  on  the  ground  so  that  the  boundaries 
can  be  readily  traced,"  and  that  all  records  of  mining  claims  shall  contain 
"the  date  of  the  location,  and  such  a  description  of  the  claim  or  claims 
located  by  reference  to  some  natural  object  or  permanent  monument  as 
will  identify  the  claim."  Sections  2325  and  2326  (pages  1429  and  1430) 
provide,  in  substance,  that  the  owner  of  such  mining  location  may  obtain 
a  patent  from  the  United  States  therefor  by  procuring  the  surveyor 
general  to  survey  and  plat  the  same,  filing  an  application  in  the  proner 
land  office  and  giving  notice  as  directed.  It  is  declared  in  section  2325 
that  "a  patent  for  any  land  claimed  and  located  for  valuable  deposits  may 
be  obtained" ;  that  any  person  "having  claimed  and  located  a  piece  of 
land"  may  file  application  for  a  patent  therefor. 

The  grant  of  the  exclusive  right  of  possession  and  enjoyment  of  the 
ground  included  within  the  lines  of  the  location  is  a  present  grant  which 
takes  effect  as  soon  as  the  location  is  legally  made.  It  refers  to  the 
lines  as  then  established,  and  gives  the  right  to  the  ground  inclosed 
thereby.  The  necessary  implication  of  the  language  is  that  the  "surface 
included  within  the  lines  of  their  locations"  which  they  have  an  immediate 
right  to  possess  and  enjoy  is  the  surface  as  then  "distinctly  marked  on 
the  ground."  The  statement  that  "no  claim  shall  extend  more  than 
three  hundred  feet  on  each  side  of  the  middle  of  the  vein  at  the  surface," 
if  taken  strictly  and  literally,  might  seem  to  refer  to  the  actual  position 


588  Water  and  Mineral  Cases.  [California 

of  the  apex,  rather  than  to  the  place  marked  as  such  by  the  locator.  But 
the  other  provisions  require  a  different  interpretation. 

The  reference  is  to  the  vein  as  honestly  marked  by  the  claimant  at  the 
time  as  the  center  of  the  claim  of  which  he  then  takes  possession.  There 
are  also  practical  reasons  which  forbid  such  literal  construction.  Lodes 
or  veins  frequently  do  not  appear  upon  the  surface  except  at  intervals. 
Sometimes  they  may  not  appear  at  all.  The  true  apex  or  middle  of  the 
vein  may  not  be  accurately  determinable  except  by  extensive  excavations. 
The  eastern  end  of  the  vein  of  the  Lookout  mine  was  covered  with  soil 
at  the  time  of  the  location.  Its  true  position  was  only  disclosed  by  sub- 
sequent excavations,  and  it  is  still  in  dispute.  Such  veins  do  not  run  in 
straight  lines  throughout  their  courses,  but  with  many  turns  and  angles. 
Detached  masses  projecting  above  the  surface  may  be  mistaken  for  the 
ledge  or  vein.  The  ore  may  occur  in  a  blanket  formation  having  no 
distinct  apex.  If  the  construction  contended  for  should  prevail,  a  mining 
location  which  the  law  declares  shall  secure  an  immediate  right  of  pos- 
session to  the  surface  within  the  marked  lines  would  often  be  a  mere  float, 
a  tentative  location,  to  be  changed  and  adjusted  from  time  to  time  to  the 
actual  location  of  the  vein,  at  the  instance  of  adjoining  claimants,  as  sub- 
sequent developments  may  indicate.  It  would  not  become  fixed  and  per- 
manent as  against  third  persons,  until  the  patent  was  issued.  That  the 
location,  as  made,  may  not  be  binding  on  the  United  States,  and  that  in 
making  the  survey  for  a  patent  the  Surveyor  General  may  ascertain  and 
locate  the  true  line  of  the  apex  to  fix  the  boundaries,  may  be  conceded. 
See  Howeth  v.  Sullenger,  113  Cal.  551,  45  Pac.  841.  But  it  is  the  clear 
intent  of  the  statute  that  in  the  meantime,  and  as  against  all  others,  the 
locator  who  has  in  good  faith  made  the  discovery  and  marked  the  bounda- 
ries with  regard  to  the  position  of  the  apex  as  he  then  finds  and  believes 
it  to  be  shall  be  protected  in  the  possession  of  the  surface  thus  ascer- 
tained, and  that  the  monuments  he  then  sets  shall  control  the  location  of 
the  claim.  Any  other  interpretation  would  produce  great  confusion  and 
uncertainty,  and  invite  disputes  and  litigation.  The  object  of  the  enact- 
ment of  the  statute,  which  evidently  was  to  give  certainty  of  location  and 
security  of  titles  to  mining  claims  and  prevent  litigation  over  them,  would 
be  defeated. 

Substantially  the  same  effect  was  given  to  the  statute  by  the  Supreme 
Court  of  Nevada  in  Golden  Fleece  Co.  v.  Cable  Con.  Co.,  12  Nev.  329, 
and  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  456.  Chief  Justice  Beatty, 
then  of  the  Supreme  Court  of  Nevada,  writing  the  opinion.  In  the 
Golden  Fleece  case  the  plaintiff,  after  locating  its  claim  according  to  what 
it  then  took  to  be  the  line  of  the  vein,  discovered  that  the  actual  course  of 
the  vein  was  at  right  angles  to  the  line  located.     It  then  undertook  to 


1911]  Harper  v.  Hill  et  al. 


589 


swing  its  claim  around   to   correspond  with   the   true   line  of  the  vein. 
Others  had  in  the  meantime  located  the  adjoining  ground,  and  they  ob- 
jected to  the  change.     After  showing  that  under  the  rules  of  miners  prior 
to  the  enactment  of  the  statute  of  1872  a  claim  was  located  by  marking 
upon  the  vein  alone,  and  that  the  vein  was  then  the  sole  criterion  of  loca- 
tion, the  court  discusses  the  change  made  by  that  statute,  saying :     "Under 
that  law  (of  1872)  it  cannot  be  doubted  that  it  (plaintiff)  is  bound  by  the 
lines  of  its  surface  claim  in  favor  of  a  subsequent  locator.     It  is  true  that 
the  vein  is  the  principal  thing  and  the  surface  but  an  incident  thereto ;  but 
it  is  also  true  that  the  mining  law  has  provided  no  means  of  locating 
a  vein  except  by  defining  a  surface  claim,   including  the  croppings   or 
point  at  which  the  vein  is  exposed,  and  the  part  of  the  vein  located  is 
determined  by  reference  to  the  lines  of  the  surface  claim.     These  lines  are 
fixed  by  the  monuments  on  the  ground,  and  they  cannot  be  changed  so  as 
to   interfere   with   other  claims   subsequently  located."     Referring  then 
to  the  part  of  the  statute  relating  to  the  records  required  by  local  rules,  the 
opinion  proceeds:     "The  requirements  of  the  law  as  to  what  the  record 
shall  show  are  evidently  designed  to  fix  the  locus  of  the  claim  in  order  to 
prevent  floating.     But  the  monuments  defining  the  claim  on  the  ground 
answer  this  purpose  better  than  the  record,  and  if  they  are  to  be  erected  in 
the  beginning  there  can  be  but  little  use  ever  to  make  a  record ;  and  in  fact 
it  is  not  made  obligatory  by  law.     *     *     *     All  that  is  decided  upon 
this  point  is  that  under  the  law  of  congress,  unaided  bv  any   supple- 
mentary miners'  rules,  there  is  no  means  of  locating  a  quartz  vein  except 
by  marking  out  surface  lines,  and  that,  when  these  lines  have  been  marked, 
they  cannot  be  changed  so  as  to  take  in  ground  that  has  been  located 
by  others  prior  to  such  attempted  change." 

In  the  Gleeson  case  this  language  is  approved,  and  the  court  further 
says:  "The  vein  is  the  principal  thing  in  the  sense  that  it  is  for  the 
sake  of  the  vein  that  the  location  is  made.  The  surface  is  of  no  value 
without  it.  No  location  can  be  made  until  a  vein  has  been  discovered 
within  its  limits,  and  the  surface  must,  or  at  least  ought  to,  be  located 
in  conformity  with  the  course  of  the  vein.  Rev.  St.  2320.  But  the 
location  is  of  a  piece  of  land  including  the  vein.  *  *  *  This  section 
alone  shows  that  it  is  a  surface  parallelogram  not  less  than  fifty  feet  in 
width  that  must  be  located.  But  the  purpose  of  the  law  is  more  clearly 
indicated  by  the  granting  clause.  *  *  *  The  vein  originally  discovered. 
and  for  the  sake  of  which  the  location  is  made,  is  lumped  in  with  other 
mineral  deposits  that  may  happen  to  exist  within  the  limits  of  the  surface 
claim,  and  no  part  of  it  is  granted  except  that  part  the  top  or  apex  of 
which  lies  inside  the  surface  lines  extending  downward  vertically.  This, 
it  would  seem,  ought  to  be  conclusive,  but  the  language  of  section  2325 


590  Water  and  Mineral  Cases.  [California 

is,  if  possible,  still  more  convincing:  'A  patent  for  any  land  claimed  and 
located  for  valuable  deposits  may  be  obtained  in  the  following  manner: 
Any  person,  association  or  corporation  authorized  to  locate  a  claim  under 
this  chapter,  having  claimed  and  located  a  piece  of  land  for  such  purposes,' 
may  by  taking  the  prescribed  steps  obtain  the  title  upon  payment  of 
five  dollars  per  acre  for  the  land.  Thus  it  appears  that  a  location  must 
be  made  by  taking  up  'a  piece  of  land'  to  include  it.  No  other  means 
are  provided."  As  to  the  object  and  policy  of  the  statute  the  court  says : 
"Before  the  statute  he  could  claim  no  more  than  400  feet  of  the  vein, 
and  of  that  he  was  not  secure  for  a  day.  The  moment  he  developed  rich 
ore  he  was  beset  by  trespassers,  and,  in  order  to  enjoin  them  from  steal- 
ing his  property,  was  obliged  to  trace  the  vein  between  them  and  the 
location  point.  He  was  harassed  with  litigation,  and  his  means  often 
entirely  consumed  in  the  prosecution  of  work  not  necessary  to  the  de- 
velopment of  his  mine,  but  essential  for  the  vindication  of  his  title.  Un- 
der the  new  law  this  source  of  vexation  and  expense  is  entirely  swept 
away.  Within  his  surface  lines  the  discoverer  of  a  vein  is  secure. 
*  *  *  Sound  policy,  therefore,  concurs  with  the  language  of  the  stat- 
ute in  sustaining  our  conclusion  that  a  vein  can  only  be  located  by  means 
of  a  surface  claim.  *  *  *  The  object  of  the  law  in  requiring  the 
location  to  be  marked  on  the  ground  is  to  fix  the  claim,  to  prevent  float- 
ing 'or  swinging,  so  that  those  who  in  good  faith  are  looking  for  unoc- 
cupied ground  in  the  vicinity  of  previous  locations  may  be  enabled  to 
ascertain  exactly  what  has  been  appropriated  in  order  to  make  their  loca- 
tions upon  the  residue." 

These  observations  were  made  with  reference  to  the  rights  of  subse- 
quent locators  of  adjoining  ground  against  changes  in  the  lines  attempt- 
ed by  the  first  locators.  But  the  point  of  the  decision  is  that  the  rights 
of  the  parties  are  fixed  by  the  lines  marked  on  the  ground  when  the  loca- 
tion is  made.  If  the  lines  so  fixed  protect  subsequent  locators  against 
changes  afterwards  sought  to  be  made  by  the  first  locator,  they  must  be 
equally  potent  to  protect  the  first  locator  against  changes  sought  to  be 
made  against  his  interest  by  subsequent  locators.  The  general  principle 
that  the  location  as  made  on  the  ground  controls  the  rights  of  the  parties 
is  stated  in  the  following  cases:  Iron  S.  M.  Co.  v.  Elgin,  etc.,  Co.,  118 
U.  S.  207,  6  Sup.  Ct.  1 177,  30  L.  Ed.  98;  Watervale  M.  Co.  v.  Leach,  4 
Ariz.  34,  33  Pac.  420;  Wyoming  Co.  v.  Champion  Co.  (C.  C),  63  Fed. 
548 ;  Mining  Co.  v.  Tarbet,  98  U.  S.  468,  25  L.  Ed.  253 ;  and  Leadville  Co. 
v.  Fitzgerald,  Fed.  Cas.  No.  8,158. 

There  are  many  cases  which  establish  the  doctrine  that  where  the 
locator  has  marked  his  corners  so  that  the  side  lines  lie  more  than  300 
feet  from  the  apex  of  the  vein  as  located  by  him  at  the  time,  or  otherwise 


1911]  Harper  v.  Hill  et  al.  591 

marks  a  claim  larger  than  the  limits  allowed  by  the  statute,  he  cannot,  as 
against  a  subsequent  locator  of  adjoining  ground,  claim  the  excess,  and 
that  a  court  may  adjudge  that  his  side  lines  shall  be  "drawn  in"  to  a 
position  not  more  than  300  feet  from  the  general  course  of  the  center  line. 
McElligott  v.  Krogh,  151  Cal.  132,  90  Pac.  823;  Howeth  v.  Sullenger,  113 
Cal.  551,  45  Pac.  841;  Southern  Cal.  R.  Co.  v.  O'Donnell,  3  Cal.  App. 
386,  85  Pac.  932;  Thompson  v.  Spray,  72  Cal.  533,  14  Pac.  182;  English 
v.  Johnson,  17  Cal.  118,  76  Am.  Dec.  574;  Hansen  v.  Fletcher,  10  Utah 
266,  37  Pac.  480;  Richmond  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29 
L.  Ed.  273.  These  and  other  cases  to  the  same  effect  are  cited  by  the 
plaintiff  in  support  of  the  proposition  that  the  side  lines  will  be  drawn 
in  when  the  court,  upon  evidence  taken  and  in  the  light  of  developments 
subsequent  to  the  original  location,  ascertains  that  the  locator  mistook 
the  actual  location  of  the  vein  where  it  does  not  show  upon  the  surface, 
and  that  the  mining  claim  is  always  subject  to  change  of  position  if  new 
evidence  or  discoveries  demonstrate  that  the  vein  is  situated  elsewhere 
than  in  the  position  it  was  supposed  to  occupy.  None  of  them  supports 
the  proposition.  In  each  the  court  assumed  that  by  some  mistake  the 
side  line  or  corner  had  been  originally  located  too  far  from  the  place 
located  as  the  apex  of  the  vein,  and  the  question  involved  and  decided 
was  the  effect  of  such  a  mistake  in  measuring  from  the  center  stake 
or  monument.  For  example,  in  McElligott  v.  Krogh,  although  it  is  not 
expressly  so  stated  in  the  opinion,  the  fact  was,  as  the  record  on  file 
shows,  that  the  court  found  that  the  true  line  of  the  vein  and  the  line 
thereof  as  originally  located  were  substantially  identical.  The  ques- 
tion of  the  effect  of  a  difference  between  the  actual  place  of  the  apex  and 
the  original  monuments  set  to  locate  it  was  not  presented,  and  nothing 
said  in  the  opinion  can  be  taken  as  an  expression  of  an  opinion  upon  that 
question. 

Of  course,  we  do  not  here  consider  the  effect  of  a  fraudulent  or  inten- 
tional mislocation  of  the  vein.  The  evidence  shows  that  at  the  eastern 
end  the  vein  did  not  appear  upon  the  surface,  and  that  the  defendants 
erected  the  center  monument  at  that  end  of  the  Lookout  claim  in  good 
faith  at  the  point  where  they  believed  the  vein  extended  across  the  end 
line  thereof.  Upon  the  facts  found  and  shown  by  the  undisputed  evi- 
dence, the  court  erred  in  giving  to  the  plaintiff  the  ground  included  within 
the  original  limits  of  the  Lookout  location  and  embraced  in  the  overlap 
of  the  Santa  Ynez  claim.  We  have  assumed  that  the  evidence  is  suffi- 
cient to  show  that  the  vein  is  situated  off  the  located  line  as  the  findings 
declare.  The  appellants  earnestly  contended  that  the  findings  are  with- 
out support  in  this  particular.  Our  conclusion  that  the  original  monu- 
ments control  makes  it  unnecessary  to  consider  this  question  of  the 
sufficienc3r  of  the  evidence. 


592  Watee  and  Minekal  Cases.  [California 

The  findings  that  the  Mountain  View  and  Success  locations  were  in- 
valid are  sustained  by  the  evidence.  The  record  does  not  set  forth  any 
substantial  evidence  of  a  discovery  of  valuable  mineral  within  the  lines 
of  the  claim.  The  defendants  testified  that  there  were  seams  of  mineral 
upon  the  claim,  but  they  did  not  state  of  what  such  mineral  consisted. 
That  term  is  too  vague  and  general  to  justify  this  court  in  reversing  a 
finding  upon  the  theory  that  the  witnesses  intended  to  declare  that  the 
mineral  in  question  was  valuable  and  of  a  character  that  would  support 
a  mining  location  under  the  laws  of  the  United  States.  A  discovery  of 
valuable  mineral  within  the  located  boundaries  is  an  essential  prerequi- 
site to  a  valid  mineral  location  upon  public  lands  of  the  United  States. 
In  addition  to  this  defect,  there  was  evidence  that  the  boundaries  of 
these  claims  were  not  marked  upon  the  ground  by  any  monuments,  or  at 
all.  As  to  the  Success  mine,  there  was  no  evidence  that  any  work  was 
done  upon  the  claim  after  the  years  1897  and  1898.  Under  some  circum- 
stances, it  would  be  necessary  to  plead  the  forfeiture  to  take  advantage 
of  such  failure.  But  here  the  claim  under  the  Success  location  was  not 
mentioned  in  the  pleadings  of  either  party.  Evidence  concerning  it,  if 
admissible  at  all,  was  so  only  under  the  general  issue  upon  the  allegation 
of  right  and  title.  In  this  condition  of  the  pleadings,  evidence  show- 
ing the  forfeiture  was  admissible  on  behalf  of  the  plaintiff,  without  ex- 
press plea.  Blood  v.  La  Serena,  etc.,  Co.,  113  Cal.  229,  41  Pac.  1017,  45 
Pac.  252. 

It  is  further  claimed  that  plaintiff  made  a  binding  agreement  in  parol 
with  the  defendants,  whereby  he  is  estopped  to  claim  against  them  more 
than  a  one-third  interest  in  that  part  of  the  Santa  Ynez  claim  not  in- 
cluded in  the  Lookout  overlap.  He  never  executed  any  written  agree- 
ment to  that  effect.  This  contention  of  the  defendants  is  based  entirely 
upon  a  supposed  estoppel  by  conduct.  The  question  is  not  presented  by 
the  record,  and  cannot  be  considered.  The  pleadings  make  no  allusion 
to  it  whatever,  and  there  is  no  finding  upon  it.  It  is  a  well-established 
rule  that,  if  a  defendant  relies  on  an  estoppel  in  pais  as  a  defense  to  the 
plaintiff's  action,  the  facts  constituting  the  estoppel  must  be  specially 
pleaded.  Di  Nola  v.  Allison,  143  Cal.  115,  76  Pac.  976,  65  L.  R.  A. 
419,  101  Am.  St.  Rep.  84;  Newhall  v.  Hatch,  134  Cal.  273,  66  Pac.  266, 
55  L.  R.  A.  673 ;  Etcheborne  v.  Auzerais,  45  Cal.  121 ;  Davis  v.  Davis,  26 
Cal.  39,  85  Am.  Dec.  157.  We  are  not  to  be  understood  as  intimating 
that  the  facts  claimed  to  exist  would  have  constituted  such  estoppel, 
even  if  they  had  been  properly  pleaded. 

The  judgment  and  order  are  reversed. 

We  concur:  ANGELLOTTI,  J.;  SLOSS,  J.;  LORIGAN,  J.; 
MELVIN,  J. 


1906]        Hull  v.  Sangamon  River  Drainage  District. 


59; 


HULL  v.  SANGAMON  RIVER  DRAINAGE  DISTRICT. 


[Supreme  Court  of  Illinois,  February  21,  1906.] 

219  111.  454,  76  N.  K  701. 

1.  Petition  for  Drainage  District — By  Whom  Signed. 

_  Where  a  deed  is  signed  and  placed  in  escrow,  the  grantor  is  a  proper  party  to 
sign  a  petition  for  a  drainage  district  until  such  time  as  the  deed  takes  effect. 

2.  Same — Tenant  for  Life. 

A  tenant  for  life  who  has  also  a  contingent  fee,  together  with  children  having 
a   contingent  remainder,  are  proper  parties  to  sign  petition  for  a  drainage  district. 

3.  Drainage  District — Change  of  Boundaries. 

Commissioners  may  change  boundaries  of  a  district  from  those  given  in  the 
petition  provided  petitioners  represent  a  majority  of  the  adult,  landowners  of  the 
land  therein  situated  and  representing  one-third  of  the  area. 

4.  Constitutional    Law — Drainage    Districts — Jury    Must    Determine    Dam- 

ages. 

Provisions  of  the  Illinois  Drainage  Act,  providing  for  the  assessment  of  damages 
by  a  jury  or  by  commissioners,  are  unconstitutional  and  void. 


CASE   NOTE. 

Inclusion  and  Exclusion  of  Lands  in 
District. 

I.  Swamp  and    Overflowed  Lands, 

594. 
A.     Statutory  Meaning,  594. 

II.  Extent  of  District,  595. 

A.  Determination    of  Is  Legis- 

lative, 595. 

B.  As  Limited  by  Petition,  596. 

C.  Changing  Boundaries,  596. 

D.  Not   Restricted    to    Estab- 

lished Subdivisions,  597. 

E.  Boundaries    Must  be   Cer- 

tain,  598. 

F.  Presumed  Land  Properly 

Included,  599. 

G.  Boundaries  Fixed   by  Own- 

ers, 599. 

H.  Boundaries  Cannot  be 
Changed  After  Organiza- 
tion, 599. 

I.      Extending  Boundaries,  599. 

III.  Including     Land     in      Several 

Districts,  600. 

A.  Including  in  More  than  One 

District,  600. 

B.  Subdistricts,  600. 
W.  &  M—  38 


IV.  Lands  Which  May  be  Included 

or  Excluded,   601. 

A.  Source  of  Title  Immaterial, 

601. 

B.  Public  Lands,  601. 

C.  Public  Lands  Uncovered  by 

Receding    of   Lakes,    601. 

D.  In  More  than  One  County, 

602. 

E.  Requiring  Distinct  Systems 

of  Drainage,  602. 

F.  Public  Highways,  602. 

G.  Municipal  Corporations  and 

Parts  Thereof,  603. 
H.    Railroad  Rights  of  Way,  605. 
I.      Lands  Naturally    Drained, 

605. 
J.      Lands    Partially    Drained, 

606. 
K.    High  or  Dry  Lands,  606. 
L.     Dominant    and    Servient 

Lands,  607. 
M.    Lands,   Majority   of  Which 

are  Drained,  607. 

V.  Illinois  Statutes,  607. 

A.  By  Connecting  with  Ditch, 

607. 

B.  By  Failure  to  Repair,  608. 

C.  Levee  Act  and  Farms  Drain- 

age Act  Are  Distinct,  609. 


594 


Watek  and  Mineral  Cases. 


[Illinois 


5.  Same — Compensation   Determined   by  Jury. 

Compensation  to  be  paid  for  land  actually  taken  and  damages  to  land  not  taken 
can  only  be  determined  by  a  jury,  and  after  determining  the  just  compensation  for 
the  land  taken,  the  jury'  can  only  determine  whether  there  is  any  damage  to  the 
lands  not  taken  or  how  much  the  damage  is  by  taking  into  account  special  benefits 
to  the  land. 

6.  Same — Method  of  Ascertaining   Damages. 

On  the  question  of  damages  to  lands  not  taken,  the  jury  is  bound  to  consider  the 
effect  of  the  improvement  upon  the  land,  both  advantages  and  disadvantages,  and 
for  the  purpose  of  reducing  or  balancing  damages,  defendant  would  necessarily  take 
into  account  any  special  benefits. 

7.  Same — Benefits   Not  Assessed. 

Such  is  not  assessing  benefits  to  the  land,  but  merely  ascertaining  whether  there 
is  damage  or  not. 
B.     Same— Eminent  Domain— Damages  Cannot  Be  Fixed  by  Commissioners. 

Commissioners  cannot  supplant  a  jury  in  determination  of  the  question  of  dam- 
ages, one  of  the  questions  necessarily  involved  in  a  proceeding  under  the  Eminent 
Domain  Act. 


As  to  the  legal  character  of  drainage 
districts,  see  note  to  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
ante,  p.  107. 

As  to  constitutional  power  to  establish 
drains  and  drainage  districts,  see  note 
to  Chicago  B.  &  Q.  R.  Co.  v.  Board  of 
Supervisors  of  Appanoose  County,  ante, 
p.  459. 

As  to  source  of  power  legislative  pow- 
er to  drain   lands,   see  note  to  Coffman 

v.  St.  Frances  Drainage  District,  p. , 

vol.   3,  this  series. 

As  to  whether  action  in  regard  to 
drainage  is  legislative  or  judicial,  see 
note  to  Smith  v.  Claussen  Park  Drainage 
&  Levee  District,  p.  — ,  vol.  2,  this  series. 

As  to  notice  required  as  due  process 
of  law,  see  note  to  Ross  v.  Board  of 
Supervisors  of  Wright  County,  ante,  p. 
358. 

As  to  public  benefit  and  interest  must 
be  involved,  see  note  to  Campbell  v. 
Youngson,  p.  ,  vol.  2,  this  series. 

As  to  powers  of  commissioners,  etc., 
see  note  to  Seibert  v.  Lovell,  ante,  p.  261. 

As  to  conclusiveness  of  decision  of 
drainage  commissioners  and  other  of- 
ficers,   see   note   to    Chapman    &    Dewey 

Land  Co.  v.  Wilson,  p.  ,  vol.  2,  this 

series. 

As  to  collateral  attack  on  drainage 
proceedings,    see    note    to    Chapman    & 


Dewey  Land  Co.  v.  Wilson,  p.  ,  vol. 

2,  this  series. 

As  to  waiver  of  irregularities  in  drain- 
age proceedings,  see  note  to  Smith  v. 
Claussen  Park  Drainage  &  Levee  Dis- 
trict, p.  ,  vol.  2,  this  series. 

As  to  bonds  of  drainage  districts,  see 
note  to  Sisson  v.  Board  of  Supervisors 

of  Buena  Vista  County,  p.  ,  vol.  3, 

this  series. 

For  historical  review  of  reclamation 
districts  in  California,  see  People  ex  rel. 
Chapman  v.  Sacramento  Drainage  Dist., 
ante,  p.   107. 

I.   Swamp  and  Overflowed  Lands. 
A.   Statutory   Meaning. 

Land  unfit  for  cultivation  in  grain 
or  other  staple  products  by  reason  of 
the  overflow  is  swamp  and  overflowed 
lands.  Keeran  v.  Griffith,  31  Cal.  461 
(1866). 

If  the  land  is  such  that  regularly  and 
annually  after  the  subsidence  of  the 
water,  a  crop  of  either  wheat,  rye,  barley, 
oats,  corn,  buckwheat,  peas  or  beans  could 
be  successfully  cultivated  and  produced, 
then  the  land  is  not  rendered  unfit  for 
cultivation  by  reason  of  overflow.  Keeran 
v.  Allen,  33  Cal.  542    (1867). 

The  test  is  not  whether  any  of  the 
staple  products  may  be  cultivated  and 
raised    on    the    land,    but   whether   such 


1906]        Hull  v.  Sangamon  River  Drainage  District. 


595 


9.  Same — Assessment  of  Damages. 

If  commissioners  can  make  an  assessment  of  benefits  to  land  a  part  of  which  is 
taken  for  public  improvement,  they  can  finally  and  conclusively  determine  a  question 
which  the  owner  has  a  constitutional  right  to  have  submitted  to  a  jury. 

10.  Same — Commissioners    May  Assess    Benefits. 

If  the  owner  makes  no  claim  for  damages  to  land,  no  part  of  which  is  taken  in 
excess  of  benefits,  commissioners  may  assess  such  benefits. 

11.  Same — Verdict  as  to  Damages  Not  Conclusive  as  to   Benefits. 

Where  a  jury  in  eminent  domain  proceedings  has  found  there  were  no  damages  to 
the  land  not  taken,  a  verdict  is  not  conclusive  that  there  were  no  benefits. 

12.  Same — Assessment   for    Benefits — When    Made    by   Commissioners. 

It  is  only  where  no  part  of  the  land  is  taken,  and  the  owner  makes  no  claim  for 
damages  in  excess  of  benefits,  that  assessment  for  benefits  can  be  made  by  drainage 
commissioners. 


products  or  some  of  them  may  be  usually 
cultivated  successfully.  Thompson  v. 
Thornton,   50   Cal.    142    (1875). 

The  phrase  "swamp  and  overflowed" 
is  the  equivalent  of  the  phrase  "wet  and 
unfit  for  cultivation,"  and  therefore  land 
that  is  too  wet  for  cultivation  is 
swamp  and  overflowed  land,  whether  the 
water  flows  over  or  stands  upon  it.  Mil- 
ler v.   Tobin,   18   Fed.   609    (1883). 

Swamp  lands,  as  distinguished  from 
overflowed  lands,  may  be  considered  such 
as  require  drainage  to  fit  them  for  cul- 
tivation. Overflowed  lands  are  those 
which  are  subject  to  such  periodical  or 
frequent  overflows  as  to  require  levees 
or  embankments  to  keep  out  the  water 
and  render  them  suitable  for  cultivation. 
San  Francisco  Savings  Union  v.  Irwin, 
28  Fed.  708   (1886). 

The  term  "marsh  or  swamp  lands"  has 
a  wider  signification  than  the  terms» 
"marshes"  or  "swamps."  The  former 
means  lands  which  by  reason  of  their 
wet  or  marshy  nature  are  incapable  of 
successful  cultivation.  Land  which,  from 
its  low  and  level  character,  may,  from 
excessive  rainfalls,  retain  at  some  sea- 
sons of  the  year  sufficient  water  so  that 
it  is  rendered  incapable  of  cultivation, 
by  reason  of  retaining  in  the  soil  or 
carrying  on  the  surface  an  excessive 
quantity  of  water  during  certain  por- 
tions of  the  year,  even  though  at  other 
times  it  may  be  high,  firm  and  dry  as 
lands  in  general.  Campbell  v.  Youngson, 
p. ,  vol.  2,  this  series. 


The  word  "overflowed"  as  applied  to 
lands,  does  not  apply  to  areas  whose 
overflow  is  merely  periodical  or  tem- 
porary, but  has  reference  to  a  permanent 
condition  of  the  lands  to  which  it  has 
applied.  It  has  reference  to  those  lands 
which  are  overflowed  and  will  remain 
so  without  reclamation  or  drainage. 
McDade  v.  Bossier  Levee  Board,  109  La. 
625,  33  So.  628  (1902). 

II.    Extent  of   District. 

A.      Determination   of    Is    Legislative. 

The  determination  of  a  territorial  dis- 
trict to  be  taxed  for  local  improvements 
is  within  the  province  of  legislative  dis- 
cretion. Willard  v.  Presbury,  81  U.  S. 
(14  Wall.)  676,  20  L.  Ed.  719  (1871); 
Paulsen  v.  Portland,  149  U.  S.  30,  13 
Sup.  Ct.  750,  37  L.  Ed.  637   (1893). 

The  legislature  has  power  to  fix  a 
district  for  itself,  without  any  hearing 
as  to  benefits,  for  the  purpose  of  assess- 
ing upon  the  lands  within  the  district 
the  cost  of  the  local  public  improvement. 
Fallbrook  Irrigation  Dist.  v.  Bradley,  164 
U.  S.  112,  17  Sup.  Ct.  56,  41  L.  Ed.  369 
(1896)  ;  People  ex  rel.  Chapman  v.  Sac- 
ramento Drainage  District,  155  Cal.  373, 
103  Pac.  207,  ante,  p.   107. 

The  question  of  what  lands  shall  be 
included  in  a  drainage  district  is  legis- 
lative, and  conclusions  reached  on  the 
subject  being  within  the  scope  of  legis- 
lative power  are  not  unlawful,  because, 
like  all  legislative  questions,  the  question 
may  have  been   in   some   instance  or   ta 


596 


Water  and  Mineral  Cases. 


[Illinois 


Appeal  from  orders  of  county  court  organizing  the  Sangamon  Drainage 
District  and  confirming  an  assessment  of  benefits  against  appellant's 
lands  by  the  commissioners  of  the  district.  Judgment  reversed  and  cause 
remanded. 

For  appellant — Rayburn  &  Buick. 

For  appellee — Wight  &  Alexander. 

CARTWRIGHT,  C.  J.  This  is  an  appeal  from  orders  of  the  County 
Court  of   McLean   County,   organizing  the   Sangamon   River   Drainage 


some  extent  decided  erroneously.  Degra- 
velle  v.  Iberia  &  St.  Mary's  Drainage 
Dist.,  104  La.  Ann.  103,  29  So.  302 
(1901). 

As  to  question  of  expediency  of  estab- 
lishing drains  being  for  the  legislature, 
see    note    I,    B,    to    Smith    v.    Claussen 

Park  Drainage  &  Levee  District,  p.  , 

vol.  2,  this  series. 

As  to  necessity  of  notice  of  establish- 
ment of  drain,  see  VII,  note  to  Ross  v. 
Board  of  Supervisors  of  Wright  County, 
ante,  p.  373. 

As  to  establishment  of  drains  being 
legislative  act,  see  I,  A,  note  to  Smith 
v.  Claussen  Park  Drainage  &  Levee  Dis- 
trict, p. ,  vol.  2,  this  series. 

B.     As    Limited    by    Petition. 

It  is  the  confirmation  of  the  report 
of  the  viewers  that  fixed  the  termini 
and  route  of  the  ditch,  the  extent  of 
the  excavations  and  work,  and  the  assess- 
ments of  benefits  made  against  each 
tract.  The  termini,  route,  etc.,  set  out 
in  the  petition  for  the  drain  are  not 
binding  upon  the  court  or  tribunal  estab- 
lishing   drain   or    district.      Chapman    & 

Dewey  Land  Co.  v.  Wilson,  p.  ,  vol. 

2,  this  series. 

A  petition  for  formation  of  drainage 
district  cannot  be  expected  to  be  exact 
as  to  description,  as  it  is  drawn  prior 
to  the  survey  and  is  merely  a  prelim- 
inary paper.  If  more  land  should  be 
covered  than  described,  the  engineer  must 
bo  recommend,  and  if  less  he  should  favor 


the  elimination  of  part;  and  the  fact 
that  the  petition  represents  that  all  land 
included  therein  is  subject  to  overflow 
or  too  wet  for  cultivation  when  this  is 
not  so,  will  not  deprive  the  board  of 
jurisdiction.  Zinser  v.  Board  of  Super- 
visors of  Buena  Vista  County,  137  Iowa 
660,   114  N.  W.  51    (1907). 

The  Iowa  Statute  does  not  contemplate 
that  the  petition  must  specifically 
describe  all  lands  to  be  included  within 
the  district.  This  is  to  be  determined 
after  the  engineer's  report  is  made. 
Mackay  v.  Hancock  County,  137  Iowa 
88,  114  N.  W.  552    (1908). 

Under  the  New  Jersey  Statute  only 
lands  described  in  the  report  and  notice 
are  liable  to  assessment.  In  the  Matter 
of  Drainage  along  Pequest  River,  3& 
N.  J.  L.  (10  Vr.)   197   (1877). 

Only  lands  described  in  the  applica- 
tion for  appointment  of  commissioners 
and  proceedings  for  establishment  of 
drains,  etc.,  are  liable  for  assessment. 
Matter  of  Drainage  of  Great  Meadows 
and  Pequest  River,  42  N.  J.  L.  (13 
Vr.)    553    (1880). 

An  order  of  court  establishing  a  drain- 
age district  is  not  final  as  to  lands  not 
included,  and  does  not  preclude  them 
being  added  to  it.  Streuter  v.  Willow 
Creek  Drainage  Dist.,  etc.,  72  111.  App. 
561    (1897). 

C.    Changing   Boundaries. 

The  original  petition  is  not  for  the 
purpose    of   making   a    final    location   of 


1906]        Hull  v.  Sangamon  Eiver  Drainage  District. 


597 


District,  in  said  county,  and  confirming  an  assessment  of  benefits  against 
appellant's  lands  by  the  commissioners  of  said  district.  The  proceed- 
ing was  commenced  by  filing  a  petition  for  the  organization  of  the  dis- 
trict under  what  is  commonly  known  as  the  Levee  Act  (2  Starr  &  C.  Ann. 
St.  1896,  p.  1500,  c.  42,  par.  29).  Commissioners  were  appointed  by  the 
court,  and  they  examined  the  lands  proposed  to  be  drained,  and  over 
and  upon  which  the  work  was  proposed  to  be  constructed,  and  made  a 
report,  as  required  by  section  9  of  the  Act  (paragraph  37),  recommend- 
ing the  organization  of  the  district.  Appellant  filed  objections  to  the 
report,  and  his  objections  were  overruled. 


the  ditch.  The  viewers  have  a  right  to 
vary  the  same,  and  all  proceedings  are 
of  an  ex  parte  character  until  the  report 
of  the  viewers  is  made  and  filed.  Chap- 
man &  Dewey  Land  Co.  v.  Wilson,  p. 
,  vol.  2,  this  series. 

Commissioners  may  change  the  bound- 
aries from  those  given  in  the  petition 
so  as  to  exclude  certain  of  the  lands 
or  include  others.  Gauen  v.  Moredock 
&  Ivy  Landing  Drainage  Dist.,  131  111. 
446,  23  N.  E.  633  (1890);  Barnes  v. 
Drainage  Com'rs,  221  111.  627,  77  N.  E. 
1124  (1906);  Doyle  v.  Baughman,  24 
111.   App.    614,    (1886). 

Under  the  Illinois  Statute,  drainage 
commissioners  may  change  boundaries 
from  those  given  in  the  petition  so  long 
as  they  have  the  requisite  number  of 
petitioners  representing  the  requisite 
amount  of  land,  and  are  not  required 
to  include  all  the  land  benefited  if  the 
effect  would  be  to  leave  the  petition  with- 
out requisite  signatures  or  amount  of 
land.  Hull  v.  Sangamon  River  Drainage 
District,  principal   case. 

In  the  absence  of  a  statutory  provision, 
commissioners  of  a  drainage  district  have 
no  authority  to  change  its  boundaries 
after  it  is  once  organized.  People  v. 
Drainage  Commissioners,  61  111.  App.  416 
(1895). 

Where  a  district  is  enlarged,  the  same 
notice  should  be  given  as  is  required 
upon  its  original  creation.  Commission- 
ers M.  &  T.  Special  Drainage  Dist.  V. 
Griffin,  134  111.  330,  25  N.  E.  995  (1890). 

A  petition  need  not  be  amended  nor 


need  affidavits  be  made  on  such  change 
of  boundaries.  Lees  v.  Drainage  Com'rs., 
125  111.   47,   16  N.   E.   915    (1888). 

Under  the  Michigan  Statute,  the  board 
of  review  may  add  new  lands  to  tha 
district  as  found  by  the  commissioners. 
Murphy  v.  Dobben,  137  Mich.  565,  100 
N.  W.  891    (1904). 

As  to  action  of  commissioners  in  add- 
ing land  being  quasi  judicial,  see  note 
II,  G,  to  Smith  v.  Claussen  Park  Drain- 
age &  Levee  District,  p. ,  vol.  2,  this 

series. 

D.    Not  Restricted  to  Established  Sub- 
divisions. 

Where  the  Constitution  does  not  pro- 
hibit it,  it  is  within  the  power  of  the 
general  assembly  to  authorize  the  forma- 
tion of  sanitary  districts,  disregarding 
existence  and  boundaries  of  pre-existing 
municipal  corporations,  and  invest  their 
corporate  authorities  with  powers  of  tax- 
ation for  sanitary  purposes.  People  ex 
rel.  Wilson  v.  Salomon,  51  111.  37  (1869)  ; 
Wilson  v.  Board  of  Trustees  of  Sanitary 
Dist.  of  Chicago,  133  111.  443,  27  N.  E. 
203  (1890). 

Where  highway  commissioners  are  also 
drainage  commissioners  they  do  not  act 
in  respect  of  the  drainage  district  as 
highway  commissioners,  in  which  capac- 
ity their  jurisdiction  would  necessarily 
be  confined  to  the  township,  but  as  drain- 
age commissioners,  and  it  is  not  requisite 
that  the  political  subdivision  in  which 
they  are  elected  should  be  coincident 
with    the    boundaries    of    the    drainage 


598 


Watek  and  Mineral  Cases. 


[Illinois 


It  is  further  contended  that  the  court  erred  in  overruling  the  objections 
and  in  not  dismissing  the  petition,  for  the  reason  that  it  was  not  signed 
by  a  majority  of  the  adult  owners  of  the  land  within  the  district  and  who 
represented  one-third  in  area  of  the  lands  to  be  reclaimed  or  benefited. 
The  petition  was  signed  in  the  summer  of  1903,  and  the  hearing  was  in 
the  fall  of  that  year,  and  Mark  Banks,  one  of  the  signers,  was  counted 
by  the  court  as  the  owner  of  160  acres  of  land.  He  had  previously  signed 
and  acknowledged  a  deed  of  the  land  to  Harrison  Frink  and  Sheridan 
J.  Frink,  and  had  deposited  the  deed  in  the  First  National  Bank  of 
Bloomington,  to  be  delivered  on  payment  of  the  purchase  price  on  or 


district  in  which  they  discharge  the 
functions  of  drainage  commissioners. 
People  v.  Drainage  Com'rs  of  Dist.  No. 
1  of  Town  of  Young  America,  143  111. 
417,  32  N.  E.  688  (1892);  Kilgour  v. 
Drainage    Com'rs,    111    111.    342     (1884). 

An  act  to  provide  for  the  construction, 
maintenance,  and  repair  of  drains  and 
ditches  by  special  assessments  on  the 
property  benefited  thereby,  and  provid- 
ing that  county  commissioners  in  coun- 
ties not  under  township  organization 
shall  be  drainage  commissioners  in  and 
for  their  respective  counties,  does  not 
contravene  the  provision  of  Constitution 
prohibiting  the  general  assembly  from 
appointing  or  electing  any  person  to 
office,  as  no  office  is  created,  but  merely 
additional  duties  imposed  upon  county 
commissioners.  Owners    of    Lands    v. 

People    ex    rel.     Stookey,    113    111.    296 
(1885). 

The  commissioners  of  a  drainage 
district  situated  in  more  than  one  town- 
ship and  selected  from  highway  commis- 
sioners of  the  different  townships,  have 
power  to  enlarge  the  district  under  the 
Illinois  Law.  In  doing  so  they  do  not  act 
as  highway  commissioners,  but  as  drain- 
age commissioners  only,  as  officers  of  a 
distinct  municipal  corporation  from  that 
in  which  they  act  as  highway  commis- 
sioners, and  there  is  no  force  to  the 
objection  that  their  jurisdiction  is  lim- 
ited to  the  territory  of  the  municipal 
corporation  in  which  they  are  elected 
highway    commissioners.      Davenport    v. 


Commissioners  of  Drainage  Dist.,  25  111. 
App.  92   (1886). 

In  providing  for  local  improvements 
such  as  drainage  districts,  the  court  is 
not  restricted  to  the  established  political 
subdivisions  of  the  state,  such  as  coun- 
ties, townships,  etc.,  but  may  provide  any 
district  or  extent  of  territory  less  than 
the  whole  state.  Alcorn  v.  Hamer,  38 
Miss.  652   (I860). 

E.    Boundaries   Must  Be  Certain. 

The  limits  and  boundaries  of  a  district 
must  be  fixed  with  certainty  and  pre- 
cision, especially  where  the  district  is 
empowered  to  levy  a  property  tax  and 
when  the  tax  must  be  voted  for.  Unless 
the  limits  are  thus  fixed  it  is  not  possible 
to  know  with  certainty  what  property 
is  taxable  and  what  persons  may  partici- 
pate in  election,  and  unless  these  limits 
are  so  fixed  the  organization  of  the 
district  is  void.  Richards  v.  Cypremort 
Drainage  Dist.,  107  La.  657,  32  So.  27 
(1901). 

Where  the  boundaries  and  limits  of 
a  district  are  not  fixed  with  certainty 
any  landowner  may  question  the  legality 
of  the  district,  although  his  land  in  any 
event  is  included  therein,  as  he  cannot 
say  what  land  is  to  share  with  his  in  the 
payment  of  assessments.  Richard  v. 
Cypremort  Drainage  Dist.,  107  La.  657, 
32   So.  27    (1901). 

To  every  legal  assessment  there  must 
be  an  assessing  district,  and  this  must 
be    known    and    designated    before    the 


1906]        Hull  v.  Sangamon  Eivek  Dkainage  District. 


599 


before  February  15,  1904,  and  in  case  of  such  payment  he  was  to  deliver 
possession  on  or  before  March  1,  1904.  The  deed  placed  in  escrow  con- 
veyed nothing  until  the  conditions  for  its  delivery  were  performed  on 
February  15,  1904,  when  it  was  delivered  to  the  grantees.  Leiter  v.  Pike, 
127  111.  287,  20  N.  E.  23.  The  title  did  not  pass  out  of  Mark  Banks  until 
the  deed  took  effect  and  the  grantees  became  the  owners  of  the  land,  and 
he  was  properly  counted  as  an  owner. 

There  was  an  80-acre  tract  which  had  belonged  to  James  R.  Cun- 
diff, who  had  died  leaving  a  widow,  Sarah  Cundiff,  and  an  only  son, 
Isaac.    By  his  will  James  R.  Cundiff  devised  said  land  to  his  widow  for 


assessment  can  be  apportioned  and  the 
burden  imposed.  It  cannot  be  left  in 
the  discretion  of  the  assessing  officer  to 
enlarge  or  contract  at  his  will,  to  include 
within  it  or  exclude  from  it  lands  at  his 
discretion,  at  the  time  he  lays  the  burden. 
Kinnie  v.  Bare,  68  Mich.  625,  36  N.  W. 
672    (1888). 

F.  Presumed  Land  Properly  Included. 
Where  a  district  is  organized  after  due 
notice  to  owners  of  land,  it  must  be 
presumed  that  land  was  properly  included 
within  its  limits.  Reclamation  Dist.  No. 
531  v.  Phillips,  108  Cal.  306,  39  Pac. 
630,  41  Pac.  335  (1895);  Com'rs  of 
Highway  v.  Drainage  Dist.,  127  111.  581, 
21  N.  E.  206  (1889);  Roby  v.  Shun- 
ganunga  Drainage  Dist.,  77  Kan.  754, 
95  Pac.  399    (1908). 

G.    Boundaries  Fixed  by  Owners. 

The  formation  of  a  reclamation  dis- 
trict the  boundaries  of  which  are  fixed 
by  county  commissioners  upon  the  major- 
ity vote  of  the  property  owners  of  the 
district,  is  not  in  contravention  of  any 
constitutional  provision,  and  does  not 
contemplate  or  permit  the  furtherance 
of  private  interests.  State  ex  rel.  Harris 
v.  Hanson,  80  Neb.  724,  115  N.  W.  294 
(1908). 

H.    Boundaries  Cannot  be  Changed  af- 
ter Organization. 

In  the  absence  of  statutory  provision 
the  commissioners  of  drainage  district; 
have  no  power  to  change  its  boundaries 
after  it  is  fully  organized,  and  have  no 


power  to  make  such  change  under  a 
statute  authorizing  the  dissolution  of  the 
district.  People  ex  rel.  Bollweg  v. 
Drainage  Com'rs  of  Union  Drainage  Dist. 
No.  1,  165  111.  156,  46  N.  E.  261  (1896); 
People  v.  Drainage  Com'rs,  61  111. 
App.    416,    affirmed    165  111.  156   (1895). 

I.     Extending    Boundaries. 

Jurisdiction  may  be  granted  commis- 
sioners to  enlarge  district  by  adding 
lands  thereto.  Scott  v.  People  ex  rel. 
Lewis,  120  111.  129,  11  N.  E.  408  (1887)  ; 
Lees  v.  Drainage  Com'rs,  24  111.  App. 
487    (1887). 

The  legislature  may  extend  or  change 
the  boundaries  of  a  district  or  grant 
power  to  commissioners  so  to  do,  and 
grant  jurisdiction  to  the  commissioners 
over  the  district  as  so  extended.  People 
v.  Drainage  Com'rs,  143  111.  417,  32  N. 
E.  688   (1892). 

Where  several  parcels  of  land  are 
sought  to  be  annexed  to  a  reclamation 
district  the  whole  proceeding  is  not  void 
because  void  as  to  certain  parts,  by 
reason  of  insufficient  description  thereof. 
People  ex  rel.  Herman  v.  Commissioners 
of  Bug  River  Special  Drainage  Dist., 
189  111.  55,  59  N.  E.  605   (1901). 

Under  the  statute  providing  for  annex- 
ation to  district  of  lands  benefited,  but 
lying  outside  its  borders,  it  is  immaterial 
whether  they  were  left  out  of  the  origi- 
nal district  by  mistake  or  accident,  or 
whether  the  benefits  were  not  and  could 
not  have  been  anticipated.    The  question 


600 


Water  and  Mineral  Cases. 


[Illinois 


life,  and  she  died  before  the  petition  was  signed.  After  her  death  the 
land  was  devised  to  the  son  Isaac  Cundiff,  for  life,  with  remainder  in 
fee  at  his  death  to  his  children  who  should  be  living  at  that  time,  and  if 
any  child  of  Isaac  should  die  in  his  lifetime  leaving  a  child  or  children, 
such  child  or  children  who  might  be  living  at  the  time  of  Isaac's  death 
was  to  have  the  share  that  would  have  gone  to  the  parent.  Isaac  Cundiff 
had  six  children,  of  whom  four  were  adults  and  two  were  minors.  He 
and  the  adult  children  signed  the  petition.  We  do  not  care  to  construe 
the  will  in  this  collateral  way,  since,  in  any  view  of  its  provisions,  the 
petition  was  sufficient.     Isaac  Cundiff,  who  signed  the  petition,  had  a 


is,  are  they  or  will  they  be  benefited? 
If  so,  they  should  be  annexed  and  share 
in  bearing  the  burden  imposed  as  well 
as  in  reaping  the  benefits  gained.  Streuter 
v.  Willow  Drainage  Dist.,  72  111.  App.  561 
(1897). 

A  decree  establishing  a  drainage  dis- 
trict adjudicates  only  that  the  lands 
included  within  it  will  be  benefited  there- 
by and  not  that  land  thereafter  sought 
to  be  included  or  added  to  district  would 
not  be  benefited,  and  is  therefore  not  a 
bar  to  afterwards  including  other  lands. 
Streuter  v.  Willow  Drainage  Dist.,  72 
111.  App.  561    (1S97). 

As  to  division  of  tract  for  assessment 
see  XIX,  note  to  Seibert  v.  Lovell,  ante, 
p.  268. 

As  to  notice  of  proceedings  to  add 
land  to  districts,  see  VII,  note  to  Ross 
v.  Board  of  Supervisors  of  Wright  County, 
ante,  p.  373. 

As  to  reclamation  conferring  public 
benefit,  see  VI,  note  to  Campbell  v. 
Youngson,  p. ,  vol.  2,  this  series. 

As  to  various  questions  and  examples 
of  what  facts,  conditions,  and  circum- 
stances justify  including  lands  in  or 
excluding  them  from  district,  see  III-VI, 
note  to  Coffman  v.  St.  Frances  Drain- 
age District,  p. ,  vol.  3,  this  series. 

III.   Including    Land    in    Several     Dis- 
tricts. 
A.     Including    in    More   than   One 
District. 

That  lands  are  included  within  a  drain- 
age district  organized  under  one  act  does 


not  preclude  their  being  attached  to  a 
district  organized  under  another  act. 
The  only  conditions  required  are  that 
the  lands  are  connected  with  the  district 
to  which  they  are  to  be  attached  by  ditch- 
es or  drains  or  that  they  are  or  will  be 
benefited  by  the  work  of  that  district. 
Allman  v.  Lumsden,  55  111.  App.  21 
(1893). 

In  the  absence  of  a  statutory  prohibi- 
tion there  is  no  restriction  as  to  the 
overlapping  of  drainage  districts.  The 
land  included  within  such  can  only  be 
assessed  for  and  to  the  extent  of  the 
benefits  actually  bestowed  by  virtue  of 
improvements  made  by  any  particular 
district.  Assessments  can  only  be  laid 
after  notice,  and  if  the  levy  is  not  sup- 
ported by  the  fact  the  landowner  has 
ample  remedy  by  appeal  to  the  courts. 
State  ex  rel.  Sheffer  v.  Fuller,  83  Neb. 
784,  120  N.  W.  495    (1909). 

B.     Subdistricts. 

New  and  independent  drainage  district 
may,  under  Illinois  Statute,  be  created, 
organized,  and  maintained  within  the 
limits  and  boundaries  of  another  dis- 
trict before  then  created,  organized,  main- 
tained, and  in  full  operation.  People 
ex  rel.  Pollard  v.  Swigert,  130  111.  608, 
22  N.  E.  787  (1889);  People  ex  rel. 
Miller  v.  Scott,  132  111.  427,  23  N.  E. 
1119    (1890). 

After  land  has  been  properly  included 
within  a  drainage  district  and  assessed 
for  a  ditch,  furnishing  general  oppor- 
tunities for  the  drainage  of  the  land  in 


1906]        Hull  v.  Sangamon  Biver  Drainage  District.  601 


life  estate  in  the  land,  and  was  also  the  only  heir  at  law  of  the  testator, 
and  if  his  children  had  no  present  estate,  the  fee  after  the  life  estate  was 
in  him  as  heir  at  law  to  wait  the  contingency  upon  which  the  remainder 
was  to  vest;  and  if  the  children  had  a  present  estate,  the  adults  who 
signed  the  petition  represented  four-sixths  of  the  remainder  combined 
with  the  life  estate.  The  petition  fulfilled  the  requirements  of  the  statute. 
The  commissioners  reported  that  the  proposed  district  did  not  em- 
brace all  the  lands  that  would  be  benefited,  and  that  a  very  large  area  of 
additional  lands,  of  which  they  gave  the  descriptions  and  names  of  the 
owners,  would  be  benefited.    They  enlarged  the  district  so  as  to  include 


that  entire  district,  a  subdistrict  may  be 
formed,  the  land  included  within  it  being 
subjected  to  an  additional  assessment  on 
account  of  the  facilities  afforded  for 
drainage  into  the  larger  ditch,  and  in 
such  event  there  would  be  no  double 
assessment,  as  the  land  would  not  be 
assessed  twice  for  the  same  improvement, 
but  for  two  separate  improvements,  each 
of  which  is  beneficial.  In  re  Hay  Drain- 
age Dist.  No.  23,  Hampe  v.  Hamilton 
County,  146  Iowa  280,  125  N.  W.  225 
(1910). 

As  to  notice  of  formation  of  subdis- 
trict,  see  IX,  note  to  Ross  v.  Board  of 
Supervisors  Wright  Co.,  ante,  p.   375. 

IV.    Lands  Which  May  Be  Included  or 
Excluded. 

A.      Source  of  Title  Immaterial. 

It  is  the  character  of  the  land  and  its 
susceptibility  of  being  reclaimed  under 
one  system  of  works  and  not  the  source 
of  title  which  authorizes  action  by  the 
state.  Hagar  v.  Reclamation  District  No. 
108,  111  U.  S.  701,  4  Sup.  Ct.  6G3,  28 
L.  Ed.  589   (1883). 

Where  swamps  granted  the  state  by 
the  United  States  have  passed  into  pri- 
vate ownership,  they  are  as  liable  to 
assessment  for  reclamation  purposes  as 
any  other  lands,  no  exemption  being 
found  in  the  donation  act  of  congress. 
Ritter  v.  Drainage  Dist.  No.  1  of  Poin- 
sett County,  78  Ark.  580,  94  S.  W. 
711    (1906). 


In  providing  for  the  reclamation  of 
swamp  and  overflowed  lands,  the  legis- 
lature is  not  restricted  to  lands  acquired 
from  the  United  States  under  the  Arkan- 
sas Act,  but  may  include  all  swamp  and 
overflowed  lands  as  well  as  those  acquired 
by  grants  from  the  Mexican  Government 
as  otherwise.  Hagar  v.  Board  of  Super- 
visors of  Yolo  County,  47  Cal.  222  (1874)  ; 
Hagar  v.  Reclamation  District  No.  108, 
111  U.  S.  701,  4  Sup.  Ct.  663,  28  L.  Ed. 
569  (1883);  Reclamation  Dist.  No.  108 
v.  Hagar,  4  Fed.  366  (1880)  ;  People  ex 
rel.  Chapman  v.  Sacramento  Drainage 
District,  155  Cal.  373,  103  Pac.  207,  ante, 
p.  107. 

B.    Public   Lands. 

Assessment  may  be  apportioned  to 
public  (school)  as  well  as  private  lands. 
Although  the  public  land  could  not  be 
sold  for  payment  of  the  assessment,  the 
state  must  make  some  other  provision 
for  the  payment  of  the  benefit  received 
by  the  public  lands.  State  ex  rel.  Lati- 
mer v.  Henry,  28  Wash.  38,  68  Pac. 
368    (1902) 

C.     Lands  Uncovered  by  Receding  of 
Lakes. 

The  legislature  may  provide  for  the 
sale  of  lands  uncovered  Dy  the  receding 
or  drainage  of  the  waters  of  inland 
lakes,  etc.,  and  if  subject  to  periodical 
overflow,  may  form  the  same  into  recla- 
mation districts.  McCord  v.  Slavin,  143 
Cal.  325,  78-  Pac.  1104   (1904). 


602 


Watee  and  Mineral  Cases. 


[Illinois 


part  of  the  lands,  which  would  not  have  the  effect  of  so  far  enlarging 
the  district  that  the  petitioners  would  no  longer  constitute  a  majority 
of  the  adult  landowners  nor  represent  less  than  one-third  of  its  area, 
but  they  did  not  include  4,248  acres  which  would  be  benefited  by  the 
proposed  work,  for  the  reason  that  there  would  not  be  the  requisite 
number  of  petitioners.  Appellant  contends  that  the  petitioners  had  no 
power  to  enlarge  the  district  by  including  a  part  only  of  the  lands  that 
would  be  benefited,  and  that  the  court  had  no  right  to  organize  a  district 
including  less  than  all  the  lands  that  would  be  so  benefited.  Section  12 
of  the  Act   (paragraph  40)   authorizes  the  commissioners  to  alter  the 


D.    In   More  than  One  County. 

Lands  situated  in  ten  different  coun- 
ties may  all  be  joined  in  one  district. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  155  Cal.  373,  103  Pac. 
207,  ante,  p.  107. 

Where  a  statute  provides  for  the 
formation  into  a  drainage  district  of 
land  to  be  benefited  thereby  situated  in 
two  different  counties,  and  of  the  land 
sought  to  be  formed  into  such  district 
that  situated  in  one  county  will  receive 
no  benefit,  the  district  cannot  be  formed. 
Beasley  v.  Gravitte,  86  Ark.  115,  110  S. 
W.    1053    (1908). 

A  drainage  district  may  construct 
drains  or  ditches  existing  and  having 
their  outlet  outside  of  the  county  in 
which  it  is  formed  and  in  which  the 
lands  comprising  it  are  situated.  Beasley 
v.  Gravitte,  86  Ark.  115,  110  S.  W.  1053 
(1908). 

The  legislature  can  confer  on  the  board 
of  supervisors  of  one  county  the  power  to 
include  within  a  district  lands  within 
another  county.  Reclamation  Dist.  No. 
108  v.  Hagar,  66  Cal.  54,  4  Pac.  945 
(1884). 

Where  lands  to  be  drained  are  situated 
in  two  different  counties,  the  legislature 
may  confer  jurisdiction  upon  the  court 
of  the  county  where  the  petition  is  filed 
and  where  a  portion  of  the  land  is 
situated.  Shaw  v.  State  of  Indiana  ex 
rel.  Whitmore,  97  Ind.  23  (1884);  Crist 
t.  State  ex  rel.  Whitmore,  97  Ind.  389 
(1884)  ;  Buchanan  v.  Rader,  97  Ind.  605 
(1884). 


Where  a  district  extends  over  two 
counties  the  circuit  court  of  either  has 
jurisdiction  to  review  acts  of  commis- 
sioners in  enlarging  the  district.  Com'rs 
of  Mason  &  Tazewell  Special  Drainage 
Dist.  v.  Griffin,  28  111.  App.  561    (1887). 

E.      Requiring     Distinct     Systems     of 
Drainage. 

Where  four  different  ditches  or  systems 
of  drainage  are  required  to  drain  a  cer- 
tain territory,  each  of  which,  independent 
of  the  others,  will  drain  a  certain  dis- 
tinct part  thereof,  the  whole  cannot  be 
included  in  one  district.  Klinger  v. 
People  ex  rel.  Hughes,  130  111.  509,  22  N. 
E.  600   (1S89). 

F.     Public    Highways. 

The  legislature  has  power  to  include 
public  highways  in  drainage  districts, 
and  to  authorize  the  commissioners  in 
such  districts  to  cut  ditches  and  to  en- 
large water  courses  across  such  highways 
when  necessary  for  drainage  purposes, 
and  to  apportion  to  the  road  authorities, 
according  to  benefits,  their  due  proportion 
of  the  cost  and  expense  of  the  drainage 
work.  Heffner  v.  Cass  &  Morgan  Coun- 
ties, 103  111.  439,  62  N.  E.  201,  58  L. 
R.   A.    353    (1901). 

By  the  Indiana  Law,  townships  may  be 
assessed  for  benefits  to  highways  by 
drains  and  drainage.  Young  v.  Wells,  97 
Ind.  410  (1884);  Grimes  v.  Coe,  102 
Ind.  406,  1  N.  E.  735   (1S85). 

It  does  not  follow  that  because  the 
court's   assessment   of   benefits   has    been 


1906]        Hull  v.  Sangamon  Kiver  Drainage  District.  603 

boundaries  by  extending  or  contracting  them  so  as  to  include  lands 
that  will  be  benefited  and  exclude  lands  that  will  not  be  benefited,  pro- 
vided that  the  alteration  of  the  boundaries  shall  not  have  the  effect  of 
so  far  enlarging  or  contracting  the  district  that  the  petitioners  will  not 
any  longer  constitute  a  majority  of  the  adult  landowners  of  the  land 
therein  situated  or  represent  one-third  of  the  area.  The  change  in  the 
boundary  of  this  district  was  in  accordance  with  that  statute.  Ihe  pro- 
viso to  section  12  fixed  a  limit  beyond  which  the  commissioners  could 
not  go  in  enlarging  the  district,  and  the  court  did  not  err  in  overruling 
the  objection. 


made  against  the  owners  of  certain  lands 
and  because  they  in  common  with  others 
of  the  taxing  district  contribute  to  the 
improvement    of    the    highways    by    the 
payment  of  road  tax,  that  they  are  there- 
by taxed  twice  for  a  public'  improvement 
from  which  they  derive  no  special  bene- 
fit.    In  cases  where  benefits  are  assessed 
against  a  highway  for  construction  of  a 
drain,  the  assessments  of  benefits   upon 
the  lands  found  to  be  benefited  by  con- 
struction of  the  drain  are  not  paid  for 
the  purpose   of  improving  the  highway, 
they  are  made  upon  the  theory  that  each 
tract  of  land  assessed  receives  a  peculiar 
and   special   benefit   and   is   increased   in 
value  by  the  construction  of  the  improve- 
ment  to   an    amount   equal   to   the   sum 
assessed     against     it.       The     landowner 
simply  pays  toward  the  construction   of 
the   work    a    sum   equal    to    the    benefits 
which  accrue  to  his  own  land.     The  law 
simply  coerces  him  to  contribute  toward 
the    improvement    of    his    own    property 
because   the   public   good   is    involved   in 
the  enterprise.     He  pays  no  more  toward 
the  public  use  than  does  another  citizen 
of  the  township.     Heick  v.   Voight,   110 
Ind.  279,  11  N.  E.  306  (1887). 

G.    Municipal    Corporations  and    Parts 
Thereof. 

Commissioners  of  drainage  have  no 
lawful  authority  to  build  drains  within 
the  limits  of  a  city  either  in  whole  or 
in  part,  as  the  city  has  the  exclusive 
power    of    drainage     within    its     limits. 


Anderson    v.    Endicutt,     101     Ind.     539 
(1884). 

Anderson  v.  Endicutt,     101   Ind.   539, 
(1884),  holding  that  cities  had  exclusive 
jurisdiction    of   the   matter   of    drainage 
within  their  limits,  and  that  there  was 
no    authority    for    the    construction    of 
drains  in  cities  by  drainage  commission- 
ers   under   the    direction    of   the    circuit 
court,  was  decided  with  reference  to  an 
Act  of  1881.     By  Act  of  1885  it  is  pro- 
vided    that     any     owner    or    owners     of 
any  separate  and  distinct  tract  or  tracts 
of   lands   lying      outside   the     corporate 
limits  of  any  city  or  town  which  would 
be  benefited  by  drainage,  and  which  can- 
not   be    accomplished    without    extraor- 
dinary labor  and  expense  as  determined 
by  the  court,  etc.,  and  which  cannot  be 
accomplished    in   the    best    and    cheapest 
manner  without  passing  through  the  cor- 
porate limits  of  such  city  or  town,  may 
apply  for  such  drainage  by  petition  to  the 
court.    The  latter  act  is  not  void,  as  the 
legislature  has  power  to  give  the  circuit 
courts  jurisdiction  over  drains  that  would 
extend    through    cities    and    towns,    and 
within  the  legislative  discretion,  to  lodge 
jurisdiction   in  this   subject  of  drainage 
in  country  and  city  conjointly  where  it 
saw  fit.     Sauntman  v.  Maxwell,  154  Ind. 
114.  54  N.  E.  397   (1899). 

Under  the  statutes  of  Illinois,  where 
a  city  or  village  has  not  organized  its 
territory  into  drainage  districts,  it  may 
be  included  within  and  as  a  part  of  a 
drainage  district  organized  under  the 
Farm    Drainage    Act.        People    ex    rel. 


604 


Water  and  Mineral  Cases. 


[Illinois 


Appellant  owned  two  hundred  acres  of  land  in  the  district,  and  the  pro- 
posed ditch  was  to  run  across  his  land,  so  that  a  part  would  be  actually- 
taken  for  the  ditch.  The  court  directed  the  commissioners  to  go  upon  the 
lands  of  the  district  and  make  assessments  of  benefits  and  damages,  or 
benefits,  in  the  manner  provided  by  law,  and  to  make  a  report  to  the 
court.  The  commissioners  took  an  oath  that  they  would,  to  the  best  of 
their  ability,  make  assessments  of  damages  and  benefits,  or  benefits, 
as  the  case  might  be,  and  made  a  report,  accompanied  by  an  assessment 
roll,  in  which  they  assessed  against  a  40-acre  tract  of  appellant  $83.40 
and  against  a  tract  of  160  acres  $551.12  for  benefits.    The  commissioners 


Smeardon  v.  Crews,  245  111.  318,  92  N.  E. 
245    (1910). 

Under  the  statutes  of  Illinois,  parts 
of  an  incorporated  city  may  be  included 
within  a  drainage  district.  People  ex 
rel.  Scheuber  v.  Nibbe,  50  111.  269,  37 
N.  E.  217  (1894);  City  of  Jolict  v. 
Spring  Creek  Drainage  Dist.,  222  111.  441, 
78  N.  E.  836  (1906);  People  ex  rel. 
Heise  v.  Monroe,  227  111.  604,  81  N.  E. 
704    (1907). 

Where  an  incorporated  village  is  un- 
lawfully included  within  a  district,  the 
same  must  be  excluded  leaving  the  dis- 
trict in  other  respects  unaffected. 
Dictum.  People  ex  rel.  Samuell  v. 
Cooper,  139  111.  461,  29  N.  E.  872 
(1891). 

Under  a  law  authorizing  the  board  of 
supervisors  of  counties  to  construct 
ditches  or  drains  whenever  the  same  will 
be  conducive  to  the  public  health,  con- 
venience, or  welfare,  they  are  not  re- 
stricted to  such  parts  of  the  county  as 
lie  without  municipal  corporations,  such 
power  not  having  been  conferred  on 
incorporated  towns  and  as  its  exercise 
is  not  repugnant  to  any  of  the  powers 
granted  to  such  corporations.  Aldrich 
v.  Paine,  106  Iowa  461,  76  N.  W.  812 
(1898). 

In  the  absence  of  constitutional 
restriction,  a  drainage  district  may  be 
created  to  include  a  city  or  town  or 
part  of  a  city  or  town.  The  efficiency 
of  drainage  would  be  greatly  impaired 
if  the  powers  of  the  governing  board 
were    limited    to    lines    of    existing    gov- 


ernmental subdivisions.  Roby  v.  Shun- 
ganunga  Drainage  Dist.,  77  Kan.  754, 
95  Pac.  399  (1908). 

Commissioners  of  drainage  districts 
have  no  power  to  annex  thereto  the 
streets  and  alleys  of  cities  and  towns 
which  have  connected  with  its  ditches 
or  drains.  Drainage  Com'rs  of  Dist. 
No.  1  v.  Village  of  Cerro  Gordo,  217  111. 
488,  75  N.  E.  516   (1905). 

Two  municipalities  cannot  exercise 
jurisdiction  over  the  same  territory  for 
the  same  purpose  at  the  same  time,  and 
where  a  city  has  assumed  jurisdiction 
over  part  of  a  creek  or  ditch  within  its 
corporate  limits,  that  jurisdiction,  for 
the  use  to  which  it  has  been  put  by  the 
city,  is  exclusive.  If  parties  who  have 
the  right  to  have  the  water  falling  upon 
their  land  flow  off  through  said  creek 
or  ditch,  desire  increased  drainage  fa- 
cilities, they  must  find  them  other  than 
in  the  Illinois  Act  of  1901,  providing 
that  where  two  or  more  parties  owning 
lands  which  require  a  combined  system 
of  drainage  have  by  voluntary  action 
constructed  ditches  which  form  a  con- 
tinuous line  or  lines  and  branches,  the 
several  parties  shall  be  liable  for  their 
just  proportion  of  repairs,  etc.,  and 
providing  for  the  formation  of  a  district 
to  include  all  lands  benefited  by  such 
ditches  when  repairs  are  not  voluntarily 
made,  they  cannot  include  the  city  in 
such  a  district  as  the  ditches  and  outlets 
of  the  city  which  have  been  constructed 
and  improved  by  special  assessment  can- 
not   be    said    to    have    been    voluntarily 


1906]        Hull  v.  Sangamon  River  Drainage  District. 


605 


reported  that  they  had  disregarded  all  damages  that  would  be  sus- 
tained by  the  lands,  both  damages  to  land  that  would  be  taken  and 
damages  to  land  that  would  not  be  taken,  because  they  had  been  advised 
that  they  had  no  right,  power,  or  authority,  under  the  law,  to  fix  damages 
or  award  compensation,  but  that  it  was  their  intention,  after  the  assess- 
ment of  benefits  had  been  confirmed,  to  begin  proceedings  under  the 
eminent  domain  act  to  condemn  the  right  of  way  over  the  lands  of 
owners  with  whom  they  could  not  agree.  Appellant  objected  to  the  as- 
sessment, specifying  as  the  principal  ground  that  the  commissioners  had 
no  power  or  authority  to  make  the  assessment,  but  his  objections  were 


made.  Bishop  v.  People,  200  111.  33,  65 
N.  E.  421   (1902). 

H.     Railroad    Rights   of   Way. 

The  state  has  an  undoubted  right  to 
authorize  the  improving  of  a  drain  across 
the  right  of  way  of  a  railroad  company 
by  deepening  and  widening  a  natural 
channel,  and  such  act  is  not  a  violation 
of  the  State  or  Federal  Constitution. 
Lake  Erie  &  W.  R.  Co.  v.  Cluggish,  143 
Ind.  347,  42  N.  E.  743  (1896);  Balti- 
more &  O.  S.  W.  R.  Co.  v.  Board  ot 
Com'rs  of  Jackson  County,  156  Ind.  260, 
58  N.  E.  837,  59  N.  E.  856  (1900)  ;  Pitts- 
burg C.  C.  &  St.  L.  R.  Co.  v.  Machler, 
158  Ind.  159,  63  N.  E.  210   (1902). 

A  statute  providing  that  a  railroad 
company  shall  make  a  ditch  or  channel 
determined  upon  for  drainage  purposes 
across  its  right  of  way,  the  expense 
thereof  being  allowed  the  company  as  its 
damages,  but  that  it  shall  be  allowed 
no  damages  on  account  of  bridging,  is 
not  unconstitutional.  Ross  v.  Board  of 
Supervisors  of  Wright  County,  128 
Iowa  427,  104  N.  W.  503,  1  L.  R.  A. 
ante,  p.  358 ;  Sisson  v.  Board  of  Super- 
visors of  Buena  Vista  County,  128  Iowa 

442,  104  N.  W.  454,  p.  ,  vol.  3,  this 

series;  Chicago,  B.  &  Q.  R.  Co.  v.  Board 
of  Supervisors  of  Appanoose  County,  170 
Fed.  665,  ante,  p.  459. 

The  rights  of  a  railroad  company  to 
bridge  over  a  natural  water  course  cross- 
ing its  right  of  way  are  not  superior 
to  those  of  the  public  to  use  the  water 
course  for  draining  lands.     Chicago,   B. 


&  Q.  R.  Co.  v.  People  ex  rel.  Drainage 
Com'rs,  200  U.  S.  561,  26  Sup.  Ct.  561, 
50  L.  Ed.  596  (1906);  Chicago,  B.  &  Q. 
R.  Co.  v.  Board  of  Supervisors  Appa- 
noose County,  170  Fed.  665,  ante,  p.  459. 

I.     Lands  Naturally  Drained. 

Lands  so  situated  that  waters  thereon 
from  falling  rains  and  melting  snows  or 
from  natural  springs  naturally  drain  into 
a  swale  and  that  are  no  better  drained 
by  a  ditch  constructed  to  drain  the  swale 
than  they  were  by  the  swale  itself,  should 
not  be  assessed  for  the  construction  of 
the  ditch  or  its  improvement,  as  where 
lands  are  so  situated  the  lower  tenement 
is  under  a  natural  servitude  to  receive 
such  waters  as  flow  to  or  upon  it  from 
the  higher  one,  provided  the  industry 
of  man  has  not  been  used  to  create  the 
servitude.  It  is  an  incident  to  the  higher 
tenement  and  a  part  of  the  property  of 
the  owner  in  it.  It  is  not  the  rain  that 
falls  on  the  land  that  determines  its 
need  of  drainage  but  the  amount  that 
falls  on  it  for  which  artificial  drainage 
is  needed,  and  where  there  is  no  necessity 
of  this,  there  can  be  no  ground  for  an 
assessment  for  the  purposes  of  drainage 
however  much  rain  may  fall  upon  it, 
and  there  is  no  principle  of  justice  upon 
which  others  less  favorably  situated  can 
compel  the  owner  to  contribute  towards 
the  making  of  other  lands  as  good  as  hia 
in    the    matter    of    drainage.      Blue    v. 


606 


Water  and  Mineral  Cases. 


[Illinois 


overruled.  The  commissioners  then  sat  as  a  jury  by  direction  of  the 
court,  against  the  objection  of  the  appellant,  for  the  hearing  of  objec- 
tions, and  rendered  a  verdict  confirming  their  assessment  as  made,  with- 
out modification,  amendment,  or  correction. 

It  is  conceded  that  the  commissioners  had  no  power  to  assess  dam- 
ages, and  they  so  stated  in  their  report;  but  it  is  contended  that  they 
could  assess  benefits  to  appellant's  lands  and  try  the  question  of  com- 
pensation and  damages  before  a  jury,  or,  in  other  words,  that  they 
could  try  the  part  of  a  condemnation  case  involving  benefits  and  have  a 
jury  try  the  other  part  involving  damages,  and  have  two  verdicts.     The 


Wentz,  54  Ohio  St.  247,  43  N.  E.  493 
(1896). 

There  is  no  power  to  assess  land  for 
benefits  conferred  by  nature,  such  as 
drainage  thereof  by  a  natural  water 
course  where  they  will  be  in  no  wise 
benefited  by  the  proposed  improvement, 
such  as  increasing  the  outlet  of  natural 
water  course  and  preventing  the  flow  of 
water  upon  riparian  lands  below  those 
proposed  to  be  so  assessed.  Mason  v. 
Fulton  County  Com'rs,  80  Ohio  St.  151, 
88  N.  E.  401,  131  Am.  St.  Rep.  689,  24 
L.  R.  A.    (N.   S.)    903    (1909). 

A  prerequisite  to  the  inclusion  of  any 
tract  of  land  in  a  drainage  district  is 
that  it  will  in  all  reasonable  probability 
derive  some  special  benefit  from  the  im- 
provement. If,  owing  to  its  location, 
the  construction  of  a  ditch  will  not  drain 
the  land  any  more  or  differently  than  is 
done  by  the  existing  swale  or  swamp,  or 
render  it  more  accessible,  or  affect  its 
immediate  surroundings,  then  it  is  not 
benefited,  even  though  the  ditch  may 
carry  off  the  water.  Zinser  v.  Board  of 
Supervisors  of  Buena  Vista  County,  137 
Iowa  660,  114  N.  W.  51    (1907). 

If  land  is  so  located  that  drainage 
will  not  benefit  it  or  so  that  it  will 
drain  quite  as  well  in  the  lowlands  or 
sloughs  as  it  will  with  the  ditch  excavat- 
ed, and  it  is  not  made  more  accessible  or 
the  like,  then  it  is  not  benefited  within 
the  meaning  of  the  statute.  In  other 
words  there  can  be  no  assessment  on 
lands  merely  because  of  the  improvement 
of  others  near  by.  Tha  land  itself  or  its 


immediate  surroundings  must  be  affecfed 
by  the  improvement  in  order  to  justify 
its  inclusion  in  the  drainage  district. 
Zinser  v.  Board  of  Supervisors  of  Buena 
Vista  County,  137  Iowa  660,  114  N.  W. 
51    (1907). 

As  to  lands  drained  by  nature  not  be- 
ing specially  benefited,  see  XIII,  note  to 

Campbell  v.  Youngson,   p.  ,  vol.   2, 

this  series. 

J.    Lands  Partially  Drained. 

That  the  proposed  improvement  is  not 
sufficient  to  completely  drain  certain 
land  is  not  a  sufficient  basis  to  say  no 
benefit  will  be  received  or  to  exclude  that 
land  in  the  formation  of  a  drainage  dis- 
trict. Schropfer  v.  Hamilton  County, 
147   Iowa  63,   125  N.   W.   992    (1910). 

Where  lands  sought  to  be  included  in 
a  drainage  district  have  been  partially 
drained,  but  not  to  such  extent  as  to 
prevent  the  overflow  and  standing  of 
waters  thereon,  they  may  be  included 
within  such  district  if  the  effect  thereof 
will  be  to  benefit  the  lands  and  prevent 
or  decrease  the  overflow  or  water 
thereon.  Comm'rs  of  Spoon  River  Drain- 
age Dist.  in  Champaign  County  v.  Con- 
nor,   121   111.   App.   450    (1905). 

K.    High  and   Dry  Lands. 

Lands  benefited  may  be  included  within 
a  district  although  they  are  not  actually 
swamp  or  overflowed.  The  test  is  whether 
they  will  be  benefited  by  the  formation 
of  the  district.  Keel  v.  Board  of  Di- 
rectors of  St.  Francis  Levee  Dist.,  59 
Ark.  513,  27  S.  W.  590   (1894). 


1906]        Hull  v.  Sangamon  River  Drainage  District. 


607 


provisions  of  this  drainage  act  for  assessing  damages  by  a  jury  or  com- 
missioners are  unconstitutional  and  void.  Michigan  Central  R.  Co.  v. 
Spring  Creek  Drainage  Dist.,  215  111.  501,  74  N.  E.  696.  The  compen- 
sation to  be  paid  for  land  actually  taken  and  damages  to  lands  not  taken 
can  only  be  determined  by  a  jury.  When  a  jury  is  impaneled  for  that 
purpose,  after  ascertaining  the  just  compensation  for  land  taken,  they 
can  only  determine  whether  there  is  any  damage  to  the  lands  not  taken, 
or  how  much  the  damage  is,  by  taking  into  account  special  benefits  to 
the  land.  On  the  question  of  damages  to  lands  not  taken,  the  jury  would 
be  bound  to  consider  the  effect  of  the  improvement  upon  the  land,  both 


Lands  which  are  not  swamp  or  over- 
flowed may  be  assessed  for  drainage  if 
they  receive  a  special,  although  indirect, 
benefit  from  the  drainage.  Spear  v. 
Drainage  Com'rs,  113  111.  632  (1885); 
Chambliss  v.  Johnson,  77  Iowa  611,  42 
N.  W.  427    (1889). 

L.       Dominant    and     Servient     Lands. 

Lands  benefited  by  the  work  of  a 
drainage  district  are  subject  to  be  at- 
tached thereto  without  regard  to  their 
natural  conditions  and  without  regard 
to  whether  they  are  dominant  or  ser- 
vient to  the  lands  of  the  district. 
Comm'rs  of  Spoon  River  Drainage  Dist. 
in  Champaign  County  v.  Connor,  121  111. 
App.  450   (1905). 

M.    Lands  Majority  of  Which  Are 
Drained. 

The  law  providing  for  including  in  a 
district  certain  land  the  majority  of 
which  will  be  benefited  by  the  proposed 
improvement,  is  constitutional.  Lewis 
County  v.  Gordon,  20  Wash.  80,  54  Pac. 
779  (1898);  Northern  Pacific  R.  Co.  v. 
Pierce  County,  51  Wash.  12,  97  Pac. 
1099,  23  L.  R.  A.    (N.   S.)    286    (1908). 

V.     Illinois    Statutes. 

A.  By  Connecting  with  Ditch. 
Under  the  Illinois  Statute  that  land- 
owners who  connect  with  drains  of  a 
district,  shall  be  deemed  to  voluntarily 
apply  to  be  included  in  the  district,  and 
their    lands   benefited   by   such    drainage 


shall  be  treated,  classified,  and  taxed 
like  other  lands  within  the  district, 
the  connection  on  the  part  of  a  land- 
owner is  an  admission  that  he  needed 
such  drains  for  outlet,  and  the  duty  of 
the  commissioners  does  not  depend  upon 
their  judgment  as  to  whether  the  lands 
so  connected  do  or  do  not  require  for 
outlet  the  drains  of  the  district.  It  is 
their  duty  to  treat  him  as  a  voluntary 
applicant  to  be  included  in  the  district, 
and  to  classify  and  tax  his  lands  bene- 
fited by  the  drainage  accordingly.  Com- 
missioners of  Lake  Fork  Special  Drain- 
age Dist.  v.  People  ex  rel.  Bodman,  138 
111.  87,  27  N.  E.  857   (1891). 

And  the  same  rule  applies  where  one 
drainage  district  connects  with  the 
drains  of  another  district, — the  district 
so  connecting  may  be  assessed  for  the 
benefits  which  it  receives  thereby. 
Drainage  Com'rs  of  Dist.  No.  1  of  the 
Town  of  Young  America  v.  Drainage 
Com'rs  of  Dist.  No.  7  of  the  Town  of 
Shiloh,  91  111.  App.  241    (1900). 

A  judgment  excluding  certain  lands 
upon  the  formation  of  a  drainage  dis- 
trict is  no  bar  to  their  being  afterwards 
annexed  under  this  statute.  People  ex 
rel.  Herman  v.  Commissioners  of  Bug 
River  Special  Drainage  Dist.,  189  111. 
55,  59  N.  E.  605    (1901). 

And  under  the  statute  it  is  not  neces- 
sary that  any  affirmative  act  be  done  by 
owners  of  land  to  be  so  added  to  district, 
as  the  statute  provides  their  consent. 
Streuter  v.  Willow  Drainage  Dist.,  72 
111.  App.  561    (1897). 


608 


Watee  and  Mineral  Cases. 


[Illinois 


advantages  and  disadvantages,  and  for  the  purpose  of  reducing  or  bal- 
ancing damages  would  necessarily  take  into  account  any  special  bene- 
fits. That  is  not  assessing  benefits  to  the  land,  but  is  merely  ascertain- 
ing whether  there  is  damage  or  not.  Page  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  70  111.  324.  Where  commissioners  set  down  damages  and  benefits, 
and  carry  the  balance  forward  as  damages  or  benefits,  the  only  final 
conclusion  is  that  there  are  damages,  or  are  benefits,  and  the  figures 
only  show  how  the  result  was  arrived  at.  Manifestly  the  commissioners 
cannot  supplant  a  jury  in  the  determination  of  one  of  the  questions 
which  is    necessarily    involved    in    a    proceeding    under    the    eminent 


Where  a  landowner  has  connected 
with  a  drain,  and  thereby,  under  Illi- 
nois Statute,  is  deemed  to  have  made 
voluntary  application  to  be  included  in 
the  district,  he  is  not  entitled  to  notice 
of  the  action  of  the  commissioners  in 
annexing  his  land  to  the  district.  People 
v.  Drainage  Comm'rs  of  Dist.  No.  1  of 
Town  of  Young  America,  143  111.  417, 
32  N.  E.  688  (1892);  Drainage  Dist. 
No.  2  v.  People  ex  rel.  Baron,  147  111. 
404,  35  N.  E.  238   (1893). 

While  the  owner  of  a  dominant  heri- 
tage has  the  right  to  collect  the  waters 
naturally  flowing  from  the  lands  over  the 
servient  heritage  into  ditches  and 
drains,  and  thus  discharge  them,  yet 
when  he  connects  his  ditches  with  the 
ditches  dug  by  a  drainage  district,  the 
statute  that  one  who  so  connects  with 
such  ditches  is  deemed  to  have  volunta- 
rily applied  to  have  his  land  included 
within  the  district,  takes  effect.  The 
mere  fact  of  the  right  to  have  the 
waters  flow  over  the  lands  below  lying 
within  the  drainage  district,  gives  no 
right  to  connect  drains  with  the  arti- 
ficial drains  of  the  district.  People  ex 
rel.  Caldwell  v.  Commissioners  of  Wild 
Cat  Drainage  Dist.,  181  111.  177,  54 
N.   E.    923    (1899). 

It  is  only  the  landowner  who  connects 
with  the  ditches  who,  under  the  Illinois 
Statute,  is  thereby  deemed  to  have  vol- 
untarily applied  for  admission  into  a 
drainage  district,  and  his  act  cannot 
affect  other  landowners,  although  by 
means   thereof   their   lands   may   also   be 


drained.  People  ex  rel.  Phillips  v. 
Drainage  Dist.  No.  5,  191  111.  623,  61 
N.  E.  381    (1901). 

B.      By   Failure  to   Repair. 

Under  the  statute  providing  that 
where  two  or  more  parties  on  adjoining 
lands  which  require  a  system  of  com- 
bined drainage  have  by  voluntary  action 
constructed  ditches  which  form  a  con- 
tinuous line  or  lines  and  branches,  and 
where  needed  repairs  and  improvements 
are  not  made  by  voluntary  agreement, 
any  one  or  more  parties  owning  parts 
of  such  ditch  shall  be  competent  to  pe- 
tition the  commissioners  of  highways 
of  the  township  for  the  formation  of  "a 
drainage  district  to  include  all  the  lands 
to  be  benefited"  by  maintaining  these 
ditches,  it  is  the  intent  of  the  act  to  in- 
clude all  lands  that  would  be  damaged  by 
filling  of  the  original  ditch,  and  the  com- 
missioners appointed  to  determine  this 
constitute  the  tribunal  to  decide  what 
lands  shall  be  included  in  the  district. 
Barnes  v.  Drainage  Commissioners,  221 
111.  627,  77  N.  E.  1124  (1906),  affirming 
Barnes  v.  Drainage  Commissioners,  123 
111.    App.    621     (1906). 

Under  such  statute  the  commissioners 
are  not  restricted  to  lands  described 
in  the  petition,  but  may  exclude  certain 
thereof  and  include  other  lands.  They 
must  determine  what  lands  will  be  bene- 
fited or  damaged,  and  include  all  bene- 
fited land  in  the  district.  Barnes  v. 
Drainage  Commissioners,  221  111.  627, 
77  N.  E.  1124    (1906). 


1906]        Hull  v.  Sangamon  River  Drainage  District. 


609 


domain  act.  If  commissioners  can  make  an  assessment  of  benefits  to 
'lands  a  part  of  which  is  taken  for  a  public  improvement,  they  can 
finally  and  conclusively  determine  a  question  which  the  owner  has  a 
constitutional  right  to  have  submitted  to  a  jury.  As  to  lands  no  part 
of  which  is  taken,  if  the  owner  makes  no  claim  of  damages  in  excess 
of  benefits  the  commissioners  may  assess  such  benefits,  and  if  a  jury  in 
an  eminent  domain  proceeding  has  found  that  there  were  no  damages 
to  the  remainder  of  the  land,  the  verdict  would  not  be  conclusive  that 
there  were  no  benefits.  City  of  Chicago  v.  Mecartney,  216  111.  377,  75 
N.  E.  117.  In  this  case  the  commissioners  under  the  orders  of  the  court 
and  against  the  objection  of  appellant,  attempted  to  determine  a  ques- 
tion which  appellant  had  a  right  to  have  submitted  to  a  jury.  The  court 
erred  in  overruling  the  objections  of  appellant  to  such  proceeding. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 


A  ditch  and  its  branches  made  by  spe- 
cial assessment  cannot  be  said  to  have 
been  voluntarily  made.  Bishop  v.  Peo- 
ple, 200  111.  33,  65  N.  E.  421    (1902). 

C.    Levee  Act  and  Farms  Drainage  Act 
Are    Distinct. 

The  two  acts  of  Illinois  Legislature 
known  as  the  Farm  Drainage  Act  and 
the  Levee  Act  are  distinct.  The  pro- 
visions of  one  do  not  apply  to  proceed- 
ings taken  under  the  other.  Gauen  v. 
Moredock  &  Ivy  Landing  Drainage  Dist. 
No.  1,  131  111.  446,  23  N.  E.  633  (1890)  ; 
Union  Drainage  Dist.  v.  Volke,  163  111. 
243,  45  K  E.  415   (1896). 


As  to  using  natural  stream,  see  XVI, 
note  to  Seibert  v.  Lovell,  ante,  p.  2G7. 

As  to  using  old  ditch,  see  XV,  note  to 
Seibert  v.  Lovell,  ante,  p.  267. 

As  to  power  to  build  levees  or  impound 
debris,  see  XVII,  note  to  Seibert  v. 
Lovell,  ante,  p.  267. 

As  to  what  facts  and  reasons  justify 
the  inclusion  of  lands  in  or  the  exclu- 
sion of  them  from  districts,  see  note  to 
Coffman  v.  St.  Frances  Drainage  Dis- 
trict, p.  ,  vol.  3,  this  series. 

As  to  collateral  attack  on  formation 
of  district,  see  II,  A,  note  to  Chapman 

&  Dewey  Land   Co.  v.   Wilson,   p.  , 

vol.  2,  this  series. 


W.  &  M.— 39 


610 


Water  and  Mineral  Cases. 


[Colorado 


GARNET  DITCH  &  RESERVOIR  COMPANY  v.  SAMPSON. 

[Supreme  Court  of  Colorado,  February  7,  1910.] 

48  Colo.  285,  110  Pac.  79,  1136. 

1.  Waters    and    Water    Courses — Reservoirs — Injuries    from     Bursting     or 

Overflows — Statutory  Liability  Absolute. 
Under  section  2272,  Mills'  Ann.  St.,  the  owners  of  reservoirs  are  liable  foT  all 
damages  arising  from  leakage  or  overflows  of  the  waters  thereof,  and  this  liability 
is  absolute  and  not  dependent  upon  the  question  of  care  or  negligence,  and  is  not 
relieved  by  the  fact  that  all  that  skill  and  foresight  could  have  suggested  to  prevent 
the  injury  was  done. 

2.  Same — Use  of   Natural    Hillside. 

The  use  of  a  natural  hillside  as  part  of  the  walls  or  construction  of  a  reservoir 
does  not  affect  the  liability  of  the  owners  for  the  breaking  or  overflow  thereof. 

3.  Same — Damage  by  Act  of  God. 

Whether  owner  of  reservoir  may  or  may  not,  notwithstanding  the  statute,  be 
excused  from  liability  upon  showing  injury  was  caused  by  act  of  God,  not  decided. 

4.  Statutory   Law — Act   Imposing    Liability   upon    Reservoir   Owners. 

Act  making  owners  of  reservoirs  absolutely  liable  for  all  damage  inflicted  by 
bursting  or  overflow,  is  constitutional  and  valid. 

5.  Same — Statutes — Exceptions. 

Where  no  exception  is  mentioned  in  a  statute,  it  must  be  presumed  none  was 
intended,  and  the  courts  will  not  construe  away  the  words  of  the  statute  by  implying 
such  exception. 

6.  Same — Statutory   Provisions — Repeal   and   Amendment. 

Section  2272,  Mill's  Ann.  St.,  regarding  liability  for  damage  from  leakage  or 
overflow  of  reservoir,  was  not  repealed  by  implication  by  Act  of  1899,  c.  126,  the 
latter  referring  to  reservoirs  of  certain  capacity  only  and  not  relieving  the  owners 
from    liability. 

Action  for  damages  occasioned  by  breaking  of  embankment  or  dam  of 
reservoir,  thereby  flooding  premises  and  destroying  cattle.  Judgment 
for  plaintiff.    Affirmed. 

For  appellant— Gondy  &  Twitchell,  J.  H.  Burkhardt,  King  &  Stewart, 
and  Millard  Fairlamb. 


CASE   NOTE. 

Statutory  Liability  for  Flooding  Land 
Is  Absolute. 

The  statute  but  reaffirms  the  common 
law  that  a  person  who  for  his  own  pur- 
pose brings  on  his  own  land  and  stores 
there  anything  likely  to  do  mischief  if 
it  escapes,  does  so  at  his  peril.  Sylvester 


v.  Jerome,  19  Colo.  128,  34  Pac.  760 
(1893).  But  the  liability  here  is  based 
solely  upon  a  construction  of  the  statute. 
Garnet  Ditch  &  Reservoir  Co.  v.  Samp- 
son, principal  case. 

The  owners  of  reservoirs  are  insurers 
against  damage  from  their  breakage  or 
overflow  to  the  extent  that  negligence 
need  not  be  alleged  in  an  action  for  such 


1910]  Ditch  &  Reservoir  Co.  v.  Sampson. 

For  appellee — Milton  R.  Welch. 


611 


As  amici  curiae,  Cars.  E.  Herrington,  R.  H.  Hart,  E.  N.  Clark,  J.  G. 
Murray,  L.  W.  Allen  and  Piatt  Rogers. 

STEELE,  C.  J.  The  complaint  charges  that  the  defendant  is  a  cor- 
poration of  the  state  of  Colorado,  and  was,  upon  the  nth  day  of  April, 
1903,  and  prior  thereto,  the  owner  in  the  possession  of  and  operating 
a  certain  reservoir  called  the  Bonnie  Reservoir,  situated  on  Dry  Creek, 
in  Montrose  County;  that  water  was  stored  therein  by  means  of  a  dam 
across  Dry  Creek;  that  the  embankment  or  dam  burst,  and  the  impound- 
ed water  escaped  with  such  force  as  to  carry  away  and  destroy  a  num- 
ber of  cattle  that  were  pastured  in  the  valley  below. 

The  defendant  admits  that  it  had  impounded  a  large  quantity  of  water 
in  its  reservoir,  but  denies  that  the  embankment  or  dam  burst,  and  states 
that  the  hillside  or  mesa  against  which  the  dam  abutted,  broke  "by  rea- 
son of  the  waters  of  said  reservoir  finding  an  underground  passage 
through  some  hole  burrowed  out  by  some  animal."  From  the  second 
defense  it  appears :  That  the  reservoir  was  constructed  in  strict  accord- 
ance with  the  plans  and  specifications  of  competent  and  skilled  engineers, 
including  the  state  engineer,  and  that  the  plans  and  specifications  of  the 
engineers  directed  that  the  dam  of  the  reservoir  be  abutted  at  each  end 
of  the  hillside  or  mesa,  and  that  the  defendant  had  omitted  nothing 
that  human  skill  and  foresight  suggested  in  the  construction  and  main- 
tenance of  the  reservoir  to  render  it  absolutely  safe. 

A  general  demurrer  to  the  answer  was  sustained.  The  first  defense 
having  put  in  issue  the  amount  of  the  loss  sustained  by  the  plaintiff, 
thereafter  the  cause  was  tried  by  the  court,  and  judgment  rendered  for 
the  plaintiff  in  the  sum  of  $495.  From  this  judgment  the  defendant  ap- 
pealed to  the  court  of  appeals,  assigning  as  error  the  sustaining  of  the 
demurrer  and  the  rendering  of  judgment. 

We  assume  that  the  defendant,  its  officers,  and  employees,  were  in  no 
wise  culpable,  and  we  shall  answer  the  questions  propounded  by  the  de- 
fendant, "Is  the  owner  of  a  reservoir  an  insurer  against  any  loss  occur- 


Louis  &  S.  F.  R.  Co.  v.  Mathews,  165 
U.  S.  7,  17  Sup.  Ct.  243,  41  L.  Ed.  611 
(1897)  ;  Union  Pacific  R.  Co.  v.  De  Busk, 
12  Colo.  294,  20  Pac.  752,  13  Am.  St. 
Rep.  221,  3  L.  R.  A.  350  (1889);  Den- 
ver, Texas  &  Rio  Grande  R.  Co.  v.  De 
Graff,  2  Colo.  App.  42,  29  Pac.  664 
(1892);  Martin  v.  New  York  &  New 
England  R.   Co.,   62  Conn.  331,  25  Atl. 


Larimer  County  Ditch  Co.  v. 
Zimmerman,  4  Colo.  App.  78,  34  Pac. 
1111    (1893). 

Statutes  imposing  liability  upon  rail- 
road companies  for  all  fires  set  by  the 
operation  of  the  road  are  similar  to  that 
considered  in  the  principal  case  and 
such  statutes  have  been  held  constitu- 
tional   and    the    liability    absolute.      St. 


612 


Water  and  Mineral  Cases. 


[Colorado 


ring  to  persons  or  property  by  reason  of  the  escape  of  water  from  such 
reservoir,  or  can  such  owner  excuse  himself  by  showing  the  absence  of 
negligence?"  as  being  the  only  ones  presented  for  our  consideration. 

The  statute  relied  upon  as  placing  an  absolute  liability  upon  the  own- 
ers of  a  reservoir,  has  several  times  been  considered  by  this  court  and 
the  court  of  appeals ;  but  the  question  propounded  by  defendant  has 
never  been  answered  (by  this  court). 

In  Ditch  Co.  v.  Zimmerman,  4  Colo.  App.  78,  34  Pac.  mi,  the  court 
declined  to  determine  whether  the  owners  of  reservoirs  were  or  were  not 
insurers  against  damage,  because  such  issue  was  not  made  by  the  plead- 
ings, but  it  did  hold  that  the  liability  was  sufficiently  absolute  to  relieve 
the  plaintiff  from  alleging  and  proving  negligence.  In  Sylvester  v.  Jer- 
ome, 19  Colo.  128,  34  Pac.  760,  the  court  held  that  the  statute  (§  2272, 
Mills'  Ann.  St.  infra)  was  simply  an  affirmation  of  a  common-law  prin- 
ciple. 

The  common-law  principle  referred  to  as  being  affirmed  by  the  words 
of  the  statute  is  that  declared  in  the  case  of  Rylands  v.  Fletcher,  3  Law 
ReP-  P-  33°  (1868),  as  follows:  "We  think  that  the  true  rule  of  law  is 
that  the  person  who,  for  his  own  purposes,  brings  on  his  own  land  and  col- 
lects and  keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must 
keep  it  at  his  own  peril ;  and  if  he  does  not  do  so,  is  prima  facie  answer- 
able for  all  the  damage  which  is  the  natural  consequence  of  its  escape. 
He  can  excuse  himself  by  showing  that  the  escape  was  owing  to  the 
plaintiff's  default;  or,  perhaps,  that  the  escape  was  the  consequence  of 
vis  major,  or  the  act  of  God." 

But  it  is  said  that  the  American  doctrine  is  not  as  announced  in  the 
case  of  Rylands  v.  Fletcher,  supra,  and  is  that  one  who  artificially  col- 
lects upon  his  own  premises  a  substance  which  from  its  nature  is  liable 
to  escape  and  cause  mischief  to  others,  must  use  reasonable  care  to 
restrain  it,  and  is  answerable  for  any  damage  occasioned  to  others  by 
a  want  of  such  care ;  and  Thompson,  in  his  work  on  Negligence,  an- 
nounces the  foregoing  as  the  American  doctrine  on  the  subject.  We 
are  of  opinion  that  neither  the  common  law  nor  the  so-called  American 
doctrine  should  control  us  in  the  determination  of  this  case;  but  that 


239  (1892)  ;  Matthews  v.  St.  Louis  &  S. 
F.  R.  Co.,  121  Mo.  298,  24  S.  W.  591,  25 
L.  R.  A.  161  (1894);  Campbell  v.  Mis- 
souri Pac.  R.  Co.,  121  Mo.  340,  25  S.  W. 
936,  42  Am.  St.  Rep.  530,  25  L.  R.  A. 
175  (1894);  Wabash  R.  Co.  v.  Ordel- 
heide,  172  Mo.  436,  72  S.  W.  684  (1903)  ; 
Baltimore  &  Ohio  R.  Co.  v.  Kreagen,  61 
Ohio  St.  312,  56  N.  E.  213  (1899)  ;  Mac- 


donald  v.  New  York,  New  Hampshire  & 
H.  River  R.  Co.,  23  R.  I.  558,  51  Atl. 
578  (1902);  Gorham  Mfg.  Co.  v.  New 
York,  New  Hampshire  &  H.  River  R.  Co., 
27  R.  I.  35,  60  Atl.  631  (1905)  ;  Thomp- 
son v.  Richmond  &  D.  R.  Co.,  24  S.  C. 
366  (1886)  ;  Brown  v.  Carolina  Midland 
R.  Co.,  67  S.  C.  481,  46  S.  E.  283,  100 
Am.  St.  Rep.  756  (1903). 


1910] 


Ditch  &  Keservoir  Co.  v.  Sampson. 


613 


the  statutes  fix  the  liability  of  reservoir  owners,  and  we  shall  base  our 
judgment  entirely  upon  a  construction  of  our  own  statutes.  Section 
2272,  Mills'  Ann.  St.,  is  as  follows:  "The  owners  of  the  reservoirs  shall 
be  liable  for  all  damages  arising  from  leakage  or  overflow  of  the  wa- 
ters therefrom,  or  by  floods  caused  by  breaking  of  the  embankments  of 
such  reservoirs."  This  section  is  found  in  the  Session  Laws  of  1879 
(Laws  1879,  p.  107,  §  40).  The  statute  places  an  absolute  liability  upon 
the  owners  of  reservoirs  for  all  damages  arising  from  leakage,  or  over- 
flow of  the  water,  or  by  floods  caused  by  the  breaking  of  the  embank- 
ment. No  exception  is  mentioned  and  unless  an  exception  appears  in 
the  statute  we  must  presume  that  none  was  intended,  and  it  would  be  a 
gross  abuse  of  the  judicial  power  to  construe  away  the  words  of  the 
statute  by  holding  the  owners  of  reservoirs  exempt  from  liability  for 
damage,  upon  their  proof  of  the  exercise  of  reasonable  care  and  caution. 

In  1899  the  legislature  enacted  "An  act  in  relation  to  reservoirs" 
(Laws  1899,  c.  126),  and  it  is  claimed  by  counsel  that  section  2272,  be- 
ing the  section  found  in  the  chapter  on  irrigation,  was  impliedly  repealed 
by  the  later  statute,  and  the  decisions  of  this  court  declaring  that  a  sub- 
sequent statute  revising  the  whole  subject-matter  of  the  former,  and  evi- 
dently intended  as  a  substitute  for  it,  although  it  contains  no  express 
words  to  that  effect,  must  operate  as  a  repeal  of  the  former,  are  cited  in 
support  of  the  contention.  This  is  undoubtedly  the  rule  of  construction, 
and  if  it  were  applicable  to  this  case,  would  control ;  but  the  Statute  of 
1899  cannot  be  said  to  have  been  intended  by  the  legislature  as  a  sub- 
stitute for  the  Law  of  1879;  by  the  very  terms  of  the  act  itself,  it  only 
applies  to  reservoirs  having  certain  capacity  or  dams  having  certain 
dimensions.  By  the  act,  dams  of  the  dimensions  mentioned  are  required 
to  be  under  the  supervision  of  the  state  engineer,  and  it  becomes  his 
duty  to  supervise  the  construction  of  reservoirs,  and  exercise  a  general 
supervision  of  them  at  all  times,  to  the  end  that  they  may  not  overflow 
and  that  breakage  or  seepage  may  not  occur. 

Whenever  in  his  judgment,  any  of  the  structures  become  unsafe,  it 
becomes  his  duty  and  the  duty  of  the  owners  under  his  direction  to 
draw  off  sufficient  water  or  to  otherwise  prevent,  if  possible,  overflow  or 
breakage.  Knowing  the  imminent  danger  attendant  upon  the  storage  of 
water,  and  to  avoid  as  far  as  it  was  possible  for  human  agency  to  avoid 


Likewise  a  liability,  imposed  by  stat- 
ute upon  railroads,  for  the  flooding  of 
lands  by  reason  of  insufficient  culverts 
in  its  embankments,  etc.,  has  been  held 
to  be  absolute.  Gulf,  Colorado  &  S.  F. 
R.  Co.  v.  Donahoo,  59  Tex.  128   (1883)  ; 


Gulf,  Colorado  &  S.  F.  R.  Co.  v.  Hensley, 
62  Tex.  593  (1884);  Austin  &  North- 
western R.  Co.  v.  Anderson,  79  Tex.  427, 
15  S.  W.  484  (1891);  Ft.  Worth  &  D. 
C.  R.  Co.  v.  Suter  (Tex.  Civ.  App.), 
118  S.  W.  215   (1909). 


614  Water  and  Mineral  Cases.  [Colorado 

damages  to  the  lower  proprietors,  the  legislature  provided  the  scheme 
of  protection  found  in  the  Law  of  1899,  and  if  the  owners  of  reservoirs 
are  to  be  absolved  from  liability  for  damages  upon  proof  of  the  exercise 
of  ordinary  care  in  the  construction,  maintenance,  and  operation  of  their 
property,  then  a  compliance  with  the  terms  of  the  statute  should,  ordi- 
narily, relieve  them  from  all  responsibility;  but  the  legislature,  with  a 
prophetic  vision,  saw  in  the  progress  of  the  development  of  the  state,  the 
holding  back  of  the  waters  of  every  stream  in  the  mountains  for  the  pur- 
pose of  storage,  to  water  the  lowlands  and  to  supply  the  power  for  manu- 
facturing and  other  purposes,  and  that  on  the  elevated  portion  of  the 
plains  there  would  be  constructed  reservoirs  in  great  numbers  for  the 
storage  of  water  out  of  season  for  irrigation  purposes,  and  knowing  that 
unless  these  reservoirs  were  constructed  and  maintained  upon  scientific 
principles,  they  would  become  a  constant  menace  to  the  lives  and  prop- 
erty of  citizens,  and  that  each  recurring  season  would  witness  appalling 
disasters  beyond  the  possibility  of  pecuniary  compensation,  the  legisla- 
ture appears  to  have  been  willing  to  permit  the  impounding  of  water, 
and  to  provide  the  means  by  which  structures  built  for  that  purpose 
should  be  rendered  as  harmless  as  skill  and  science  could  make  them ; 
but  it  does  not  show  an  intention  to  relieve  the  owners  from  liability 
upon  compliance  with  the  statutory  provisions,  and  to  leave  the  persons 
and  property  of  our  citizens  without  remedy  in  the  event  of  injury,  for 
in  the  very  law  which  requires  supervision  by  the  state  engineer,  we  find 
the  following:  "None  of  the  provisions  of  this  act  shall  be  construed 
as  relieving  the  owners  of  any  such  reservoir  from  the  payment  of  such 
damages  as  may  be  caused  by  the  breakage  of  the  embankments  thereof, 
but  in  the  event  of  any  such  reservoir  overflowing,  or  the  embankment, 
dams,  or  outlets  breaking  or  washing  out,  the  owners  thereof  shall  be 
liable  for  all  damages  occasioned  thereby,"  evincing  in  positive  and  di- 
rect terms  a  legislative  purpose  to  hold  owners  liable  for  all  damages 
occasioned  by  the  breaking  of  a  reservoir. 

Thus,  whether  the  owners  of  reservoirs  have  or  have  not  complied 
with  the  Law  of  1899,  and  whether  they  were  or  were  not  guilty  of 
negligence  in  the  construction  or  maintenance  or  operation  of  their  prop- 
erty, and  whether  the  section  of  the  Law  of  1879  was  or  was  not  re- 
pealed by  the  later  Law  of  1899,  the  liability  is  the  same.  It  is  said 
that  the  case  of  the  Denver  City  Irrigation  &  Water  Co.  v.  Middaugh, 
12  Colo.  434,  21  Pac.  565,  13  Am.  St.  Rep.  234,  supports  the  contention 
of  the  appellants  that  they  are  excused  from  the  payment  of  damages 
upon  proof  of  the  exercise  of  ordinary  care.  A  careful  reading  of  Jus- 
tice Hayt's  opinion  in  that  case  discloses  that  the  question  before  the 
court  was  not  whether  the  owners  of  the  reservoir  were  or  were  not 


1910]  Ditch  &  Reservoie  Co.  v.  Sampson.  615 

insurers  against  damages,  but  whether  one  whose  land  had  been  taken 
under  the  eminent  domain  act  for  reservoir  purposes,  and  having  been 
awarded  a  sum  of  money  for  damages  to  the  land  not  taken,  can  or  can- 
not recover  damages  upon  allegation  of  negligence  or  of  unskillful  con- 
struction of  the  reservoir.  The  court  held  that  "in  assessing  damages 
for  the  lands  taken  for  the  construction  of  a  canal  or  reservoir  thereon, 
injuries  to  the  residue  of  such  lands  arising  from  seepage  and  leakage 
from  such  canal  and  reservoir  should  be  anticipated,  and  damages  for 
the  same  should  be  included  in  the  original  assessment;  and  no  subse- 
quent recovery  for  such  injuries  will  be  allowed,  unless  such  negligence 
or  unskillfulness  be  shown." 

Our  attention  is  also  directed  to  several  decisions  of  this  court  holding 
proprietors  to  the  exercise  of  ordinary  care  only  in  the  construction  and 
operation  of  ditches,  and  counsel  contends  that  as  the  liability  of  ditch 
owners  and  reservoir  owners  is  declared  in  similar  language,  although 
in  different  sections,  no  higher  degree  of  care  should  be  required  of 
reservoir  owners  than  is  required  of  ditch  owners.  It  is  true  that  the 
ditch  owners  have  been  held  to  the  exercise  of  ordinary  care  only,  for 
the  statute  does  not  hold  them  to  an  absolute  liability.  There  is  very 
good  reason  for  the  legislative  distinction.  A  ditch  carrying  water  can, 
by  the  exercise  of  ordinary  care,  be  rendered  harmless.  The  carrying  of 
water  through  ditches  is  not  a  dangerous  or  menacing  vocation — the 
water  is  not  restrained  and  the  pressure  is  but  slight — while  in  a  reser- 
voir, the  water  is  restrained  and  the  pressure  is  very  great,  so  great  that 
the  exercise  of  the  greatest  amount  of  care  and  skill  may  not  prevent 
the  water  from  effecting  its  escape. 

The  statute  imposing  liability  upon  railroads  for  all  damages  by  fire 
set  out  or  caused  by  operating  the  road,  is  very  similar  to  the  statute 
we  have  under  consideration,  and  this  court  has  held  that  such  a  law  is 
not  in  violation  of  the  Constitution,  and  that  the  liability  of  the  railroad 
company  is  absolute.  The  case,  Union  Pacific  R.  Co.  v.  De  Busk,  12  Colo. 
294,  20  Pac.  752,  3  L.  R.  A.  350,  13  Am.  St.  Rep.  221,  is  a  very  instruct- 
ive one,  and  the  writer  of  the  opinion  reviews  many  authorities  decisive 
of  the  question. 

As  the  underlying  principle  of  the  decisions  upholding  the  legislative 
act  imposing  absolute  liability  upon  railroads  for  damages  by  fire  apply 
with  equal  force  to  the  statute  we  have  under  consideration  here,  we 
shall  quote  at  length  from  some  of  those  decisions.  It  will  be  found 
that  it  is  intimated,  at  least,  that  in  granting  permission  to  make  use  of 
so  dangerous  an  agency  as  fire,  when  the  utmost  care  and  vigilance  can- 
not prevent  injury  to  innocent  persons,  if  the  users  of  such  agency  are 


616  Water  and  Mineral  Cases.  [Colorado 

held  to  the  exercise  of  ordinary  care  only,  such  legislation  would  not 
only  be  unjust,  but  of  doubtful  validity. 

In  the  case  of  Campbell  v.  M.  Pac.  R.  Co.,  121  Mo.  340,  25  S.  W.  936, 
25  L.  R.  A.  175,  42  Am.  St.  Rep.  530,  the  court,  in  construing  a  statute 
of  the  State  of  Missouri,  imposing  a  liability  upon  railroad  companies 
for  damages  resulting  from  fire  set  out  or  caused  by  the  operation  of 
its  road,  had  this  to  say:  "It  is  unquestioned  that  the  utmost  diligence 
and  care  cannot  prevent  the  escape  of  fire  from  locomotive  engines.  We 
have,  then,  this  condition  of  things.  The  corporation  is  given  the  right, 
by  the  statute,  to  run  its  engines  by  steam  power,  necessitating  the  use 
of  fire.  Fire  necessarily  escapes,  and  is  scattered  along  the  route.  The 
citizen  owns  property  on  the  line  of  the  road,  which  is  exposed  to  fire 
from  those  engines,  regardless  of  the  care  and  vigilance  he  may  exercise. 
Both  parties  are  faultless,  but  nevertheless  the  property  of  the  owner  is 
consumed  by  fire  from  an  engine.  The  property  owner  has  the  right  to 
own  the  property,  and  to  claim  protection  under  the  law,  equal  at  least, 
to  the  right  of  the  corporation  to  use  fire  on  its  engines.  The  loss  must 
necessarily  fall  upon  one  or  the  other  of  these  parties.  Which  one  of 
them  shall  suffer  the  loss, — the  one  through  whose  agency  the  damage  was 
caused,  though  in  the  lawful  use  of  its  own  property,  or  the  one  equally 
innocent  of  wrong,  and  who  had  no  agency  in  causing  the  damage? 
Tested  by  the  rule  of  natural  right  and  equity,  there  could  be  but  one  an- 
swer to  the  inquiry.  This  answer  is  formulated  into  the  maxim  that 
'Every  one  should  so  use  his  own  property  as  not  to  injure  that  of  his 
neighbor.'  " 

Construing  the  same  statute,  the  Supreme  Court  of  Missouri,  in  the 
case  of  Mathews  v.  St.  L.  &  S.  F.  R.  Co.,  121  Mo.  298,  24  S.  W.  91,  25  L. 
R.  A.  161,  said:  "If  the  state  is  powerless  to  protect  its  citizens  from 
the  ravages  of  fires  set  out  by  agencies  created  by  itself,  then  it  fails  to 
meet  one  of  the  essentials  of  a  good  government.  Certainly  it  fails  in 
the  protection  of  property.  The  argument  of  the  defendant  reduced  to 
its  last  analysis  is  this:  The  state  authorized  the  railroad  companies  to 
propel  cars  by  steam.  To  generate  steam,  they  are  compelled  to  use  fire, 
therefore  they  can  lawfully  use  fire,  and  as  they  are  pursuing  a  lawful 
business,  they  are  only  liable  for  negligence  in  its  operation;  and  when, 
in  a  given  case,  they  can  demonstrate  they  are  guilty  of  no  negligence, 
then  they  cannot  be  made  liable.  To  this  the  citizen  answers:  'I  also 
own  my  land  lawfully.  I  have  the  right  to  grow  my  crops,  and  erect 
buildings  on  it  at  any  place  I  choose.  I  did  not  set  in  motion  any  dan- 
gerous machinery.  You  say  you  are  guiltless  of  negligence.  It  results 
then  that  the  state  which  owes  me  protection  to  my  property  from  others, 
has  chartered  an  agency,  which,  be  it  ever  so  careful  and  cautious  and 


1910]  Ditch  &  Eeseevoie  Co.  v.  Sampson.  617 

prudent,  inevitably  destroys  my  property,  and  yet  denies  me  all  redress. 
The  state  has  no  right  to  take  or  damage  my  property  without  just  com- 
pensation.' But  what  the  state  cannot  do  directly,  it  attempts  to  do  indi- 
rectly, through  the  charters  granted  to  railroads,  if  defendant's  conten- 
tion be  true.  When  it  was  demonstrated  that  although  the  railroads 
exercised  every  precaution  in  the  construction  of  their  engines,  the  choice 
of  their  operatives,  and  clearing  their  rights  of  way  of  all  combustibles, 
still  fire  was  emitted  from  their  engines,  and  the  citizen's  property 
burned  notwithstanding  his  efforts  to  extinguish  it,  and  notwithstand- 
ing he  had  in  no  way  contributed  to  setting  it  out,  it  is  perfectly  compe- 
tent for  the  state  to  require  the  company  who  set  out  the  fire  to  pay  his 
damages.  He  is  as  much  entitled  to  the  protection  from  fire  set  out  by 
the  engines,  as  he  is  against  the  killing  of  his  stock  by  those  engines." 
This  latter  case  was  taken  by  writ  of  error  to  the  Supreme  Court  of 
the  United  States  (St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  1, 
17  Sup.  Ct.  243,  41  L.  Ed.  611),  where  it  was  affirmed.  Mr.  Justice 
Gray,  in  delivering  the  opinion  of  the  court,  has  this  to  say :  "The  mo- 
tives which  have  induced,  and  the  reasons  which  justify,  the  legislation 
now  in  question,  may  be  summed  up  thus :  Fire  while  necessary  for 
many  uses  of  civilized  man,  is  a  dangerous,  volatile,  and  destructive  ele- 
ment, which  often  escapes  in  the  form  of  sparks,  capable  of  being  wafted 
afar  through  the  air,  and  of  destroying  any  combustible  property  on 
which  they  fall ;  and  which,  when  it  has  once  gained  headway,  can  hardly 
be  arrested  or  controlled.  Railroad  corporations,  in  order  the  better  to 
carry  out  the  public  object  of  their  creation,  the  sure  and  prompt  trans- 
portation of  passengers  and  goods,  have  been  authorized  by  statute  to 
use  locomotive  engines  propelled  by  steam  generated  by  fires  lighted  upon 
those  engines.  It  is  within  the  authority  of  the  legislature  to  make 
adequate  provision  for  protecting  the  property  of  others  against  loss  or 
injury  by  sparks  from  such  engines.  The  right  of  the  citizen  not  to  have 
his  property  burned  without  compensation  is  no  less  to  be  regarded  than 
the  right  of  the  corporation  to  set  it  on  fire.  To  require  the  utmost  care 
and  diligence  of  the  railroad  corporations  in  taking  precautions  against 
the  escape  of  fire  from  their  engines  might  not  afford  sufficient  protec- 
tion to  the  owners  of  property  in  the  neighborhood  of  the  railroads. 
When  both  parties  are  equally  faultless,  the  legislature  may  properly 
consider  it  to  be  just  that  the  duty  of  insuring  private  property  against 
loss  or  injury  caused  by  the  use  of  dangerous  instruments,  should  rest 
upon  the  railroad  company,  which  employs  the  instruments  and  creates 
the  peril  for  its  own  profit,  rather  than  upon  the  owner  of  the  property, 
who  has  no  control  over  or  interest  in  those  instruments." 


618  Wateb  and  Mineral  Cases.  [Colorado 

Finally  it  is  urged  that  the  statute  imposes  no  liability,  except  for  the 
breaking  of  the  bank  or  dam  of  the  reservoir.  It  is  stated  in  the  an- 
swer that  neither  the  bank  nor  the  dam  broke,  but  that  the  injury  was 
occasioned  by  the  washing  out  of  the  mesa  or  hillside.  The  contention 
is  that  the  words  "embankment"  and  "dam"  cannot  be  construed  to 
cover  or  include  natural  barriers.  We  cannot  agree  with  this  contention. 
In  our  opinion,  whenever  the  builder  of  a  reservoir  uses  a  natural  bank 
or  dam  for  impounding  water,  he  adopts  it  as  part  of  his  reservoir,  and 
must  be  held  to  the  same  liability  as  if  it  were  built  by  him.  The  legisla- 
ture did  not  intend  that  one  who  appropriates  a  natural  bank  as  part  of 
his  reservoir  should  be  exempt  from  liability  in  the  event  of  its  washing 
out,  but  did  intend  the  word  "embankment"  should  include  not  only  an 
artificial  barrier,  but  a  natural  one  as  well,  if  used  as  a  part  of  the 
reservoir,  to  prevent  the  escape  of  water.  This  construction  is  supported 
by  the  case  of  Barber  v.  Nottingham  Canal  Co.,  15  C.  B.  N.  S.,  at  page 

747- 

The  storage  of  water  is  a  source  of  profitable  investment  of  capital. 
The  owners  know,  however,  that  water,  from  its  nature,  is  pressing  out- 
ward in  all  directions  and  continually  striving  to  break  through  any  arti- 
ficial barrier  by  which  it  may  be  restrained.  They  know  that  the  break- 
ing of  the  barrier  may  result  in  great  damage  to  many  innocent  persons; 
that  death  and  destruction  may  follow  the  escape  of  the  stored  water, 
and  the  legislature  has  said  to  these  owners :  "If  you  collect  so  danger- 
ous an  agency  on  your  own  land,  you  must  keep  it  confined ;  if  it  escapes, 
it  is  at  your  peril." 

For  the  reasons  given,  the  judgment  is  affirmed. 

Judgment  affirmed. 

CAMPBELL,  J.,  dissents;  HILL,  J.,  not  participating. 

On  Petition  for  Rehearing. 

PER  CURIAM.  We  have  held  that  the  statute  imposes  an  absolute 
liability,  but  we  have  not  held  that  a  reservoir  owner  may  or  may  not, 
under  the  law  of  the  land  and  notwithstanding  the  statute,  be  excused 
from  liability  upon  showing  that  the  injury  was  caused  by  the  act  of 
God  or  the  public  enemy. 

Petition  for  rehearing  denied. 

CAMPBELL  and  HILL,  JT.,  not  participating. 


1910] 


Flynn  Group  Mining  Co.  v.  Muephy. 


619 


FLYNN  GROUP  MIN.  CO.  v.  MURPHY. 

[Supreme  Court  of  Idaho,  May  23,  1910;  on  petition  for  rehearing,  June  22,  1910.] 
18  Idaho  266,  109  Pac.  851,  138  Am.  St.  Eep.  201. 

(Syllabus  by  the  Court.) 

1.  Appeal — Review  of  Findings — Conflict  in   Evidence. 

When  there  is  a  substantial  conflict  in  the  evidence  upon  which  any  rinding  of 
fact  is  based,  such  finding  will  not  be  reversed  on  appeal. 

2.  New  Trial    Properly  Denied. 

Held,  that  the  court  did  not  err  in  denying  a  new  trial  on  the  ground  of  newly 
discovered  evidence. 

3.  Mining  Claims — Location — Unoccupied   Territory. 

A  subsequent  valid  location  of  a  mining  claim  in  this  state  cannot  be  made  on 
mineral  land  that  is  already  covered  by  a  valid  location. 

4.  Same — Rights  of  Subsequent  Locators. 

Where  a  discovery  is  made  on  a  vein  of  mineral  bearing  rock,  and  the  notice  pro- 
vides that  such  claim  extends  several  hundred  feet  in  a  northwesterly  direction 
and  eight  hundred  feet  in  a  southeasterly  direction  from  such  discovery,  and  the 
corner  ^stakes  on  the  southeasterly  end  are  so  placed  as  to  take  in  more  than  eight 
hundred  feet  of  such  vein,  subsequent  locators  may  legally  locate  the  excess  of 
ground,  as  the  first  location  is  valid  only  to  the  extent  of  eight  hundred  feet 
southeasterly  from  the  point  of  discovery  on  said  claim. 


CASE    NOTE. 

Location     Must    Be    Marked    on    the 
Ground. 

I.     Law  Mandatory  —  Mark- 
ing Essential,   620. 
II.    When  Failure  Excused, 
620. 

III.  Purpose     and     Object     op 

Law,  620. 

IV.  Time  op  Marking,  622. 

A.  Within        Reasonable 

Time,  622. 

B.  Before    Other   Rights 

Intervene,  622. 
V.     Character  of  Marks  Not 
Prescribed    by    Federal 
Law,  623. 
VI.     Permanent   Monument    or 
Natural     Object — What 
Sufficient  as,  625. 
VII.     What  is  a  Sufficient  Mark- 
ing, 626. 
VIII.     Condition  of  Country  and 
Surroundings    Consider- 
ed,  630. 
IX.     Stakes,    etc.,    Placed    Off 
Claim,  631. 


X.    Monuments  Control 

Courses  and   Distances, 
632. 
XI.     Exactness  op  Survey  Not 

Required,  632. 
XII.     Changing  Lines,  633. 

XIII.  Adopting  Old  Stakes,  633. 

XIV.  Sufficiency     op     Marking 

Question  op  Fact,  634. 
XV.     Mere   Staking    op   No   Ef- 
fect, 636. 
XVI.     State  Statutes  and  Local 

Rules,  636. 
XVII.     No  Presumption  of  Mark- 
ing, 637. 

XVIII.     Removal    or    Obliteration 
of  Marks,  638. 

XIX.     Placer  Claims — Reference 
to    Governmental     Sur- 
veys, 639. 
XX.     Claims  by  Associations,  642. 
XXI.     Tunnel  Claims,  642. 
XXII.     Adjoining  Claims,  642. 

XXIII.  Under   Colorado   Statute, 

642. 

XXIV.  Under     Ontario,     Canada, 

Statute,  644. 


620 


Watee  and  Mineral  Cases. 


[Idaho 


5.  Same — Defining    Boundaries. 

The  law  requires  the  locator  to  make  his  location  so  definite  aad  certain  that 
from  the  location,  notice  and  stakes  and  monuments  on  the  ground  the  limits  and 
boundaries  of  the  claim  may  be  ascertained,  and  so  definite  and  certain  as  to 
prevent  the  changing  or  floating  of  such  claim. 

6.  Same — Excessive  Location — Fraud. 

Where  the  boundaries  of  a  claim  are  made  excessive  in  size,  with  fraudulent 
intent,  it  is  void;  or,  if  so  large  as  to  preclude  the  presumption  of  innocent  error, 
fraud  will  be  presumed. 

7.  Same — Location — Discovery    Monument. 

Under  the  provisions  of  section  3207,  Rev.  Codes,  the  locator  of  a  mining  claim 
is  required  to  erect  a  monument  at  the  place  of  discovery  upon  which,  among  other 
things,  he  must  place  the  distance  claimed  along  the  vein  each  way  from  such 
monument. 

8.  Same — Location  of   Excess  Ground   Within   Stakes. 

Held  that  where  a  location  notice  states  that  the  mining  claim  which  it  describes 
extends  seven  hundred  feet  in  a  northwesterly  direction  and  eight  hundred  feet  in 
a  southeasterly  direction  along  the  lode,  a  locator  may  go  to  the  point  of  discovery 
of  such  claim  and  measure  the  ground  from  the  discovery  point  eight  hundred  feet 
m  a  southeasterly  direction  along  the  lode,  and  if  there  be  any  unlocated  ground 
beyond  that  eight  hundred  feet,  may  legally  locate  it,  regardless  of  the  fact  that 
the  easterly  end  stakes  had  been  established  beyond  the  eight  hundred  feet. 


I.      Law      Mandatory — Marking      Es- 
sential. 

The  provisions  of  the  law  requiring 
the  marking  on  the  ground  are  man- 
datory. Worthen  v.  Sidway,  72  Ark. 
215,  79  S.  W.  777  (1904);  Ware  v. 
White,  81  Ark.  220,  108  S.  W.  831 
(1906);  Funk  v.  Sterrett,  59  Cal.  613 
(1881). 

The  distinct  marking  of  the  location 
upon  the  ground,  so  that  its  boundaries 
can  be  readily  traced,  is  the  main  act  of 
original  location,  and  the  ultimate  fact 
in  determining  the  validity  of  the  loca- 
tion. Donahue  v.  Meister,  88  Cal.  131, 
25  Pac.  1099,  22  Am.  St.  Rep.  283 
(1891);  Eaton  v.  Norris,  131  Cal.  563, 
63  Pac.  856  (1901);  McCleary  v.  Brod- 
dus  (Cal.  App.),  Ill  Pac.  125   (1910). 

The  marking  of  the  location  so  that 
the  surface  boundaries  may  be  readily 
traced  is  essential  to  a  valid  location. 
Daggett  v.  Yreka  Min.  Co.,  149  Cal.  357, 
86  Pac.  968  (1906);  Strepey  v.  Stark, 
7  Colo.  614,  5  Pac.  Ill,  17  Mor.  Min.  R. 
28    (1884). 

One  of  the  imperative  requirements  of 
the  statute,  an  indispensable  condition 
precedent  of  a  valid  location,  is  that  it 


shall  be  "distinctly  marked  on  the 
ground  so  that  its  boundaries  can  be 
readily  traced."  Gleeson  v.  Martin 
White  Min.  Co.,  13  Nev.  442,  9  Mor.  Min. 
R.  429   (1878). 

One  who  fails  to  erect  monuments  and 
corner  posts  and  to  properly  mark  the 
boundaries  of  his  claim  assumes  the  risk 
of  third  parties'  rights  intervening.  Pro- 
tective Min.  Co.  v.  Forest  City  Min.  Co., 
51  Wash.  643,  99  Pac.   1033    (1909). 

II.      Where    Failure    Excused. 

The  mining  laws  do  not,  any  more  than 
any  other  law,  require  parties  to  perform 
impossibilities,  and  therefore,  the  failure 
to  stake  a  part  of  one  line,  because  the 
ground  was  the  side  of  a  precipice  and 
inaccessible,  does  not  avoid  the  location. 
Eilers  v.  Boatman,  3  Utah  159,  2  Pac. 
66,  15  Mor.  Min.  R.  462  (1883),  affirmed 
111  U.  S.  356,  4  Sup.  Ct.  432,  28  L.  Ed. 
454   (1884). 

III.      Purpose   and   Object   of   Law. 

The  law  is  certainly  complied  with 
whenever  stakes  and  monuments  are  so 
placed  upon  the  ground  that  the  bounda- 
ries of  the  location  can  be  traced  with 
reasonable    certainty,    and    without    any 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


621 


9.  Same — Fraud. 

The  case  of  Nieholls  v.  Lewis  &  Clark  Mining  Co.,  18  Idaho  224,  109  Pac.  846,  cited 
and  approved,  and  the  case  of  Atkins  v.  Hendree,  1  Idaho  95,  cited  and  disapproved, 
so  far  as  it  holds  that  no  fraud  can  be  perpetrated  where  there  exists  the  mean3 
of  ascertaining  or  discovering  the  fraud. 

10.  Same — Essentials  of  Location   Notice. 

Under  the  provisions  of  section  3207,  Rev.  Codes,  the  location  notice  is  not 
required  to  describe  the  exterior  boundaries  of  the  claim. 

11.  Same — Sufficiency  of  Location   Notice. 

Where  it  appears  that  a  mining  claim  has  been  located  in  good  faith,  if  by  any 
reasonable  construction  the  language  used  in  the  location  notice  describing  the  claim 
pnd  referring  to  natural  objects  and  permanent  monuments  imparts  knowledge  of 
the  location  of  such  claim  to  a  subsequent  locator,  it  is  sufficient. 

12.  Same — Relocation — Evidence. 

Held,  that  the  locator  had  actual  notice  that  the  ground  in  controversy  had  been 
located,  as  well  as  constructive  notice  by  an  examination  of  the  recorded  notice, 
and  that  no  technicalities  will  be  resorted  to  to  sustain  his  relocation  of  the  same 
ground. 

13.  Same — Performance   of   Assessment    Work — Evidence — Possession. 

Held,  that  the  finding  of  the  court  to  the  effect  that  the  respondent  had 
performed  the  assessment  work  on  the  Murphy  fraction  for  nine  years,  and  that 


practical  difficulty.  The  object  of  the 
law  in  requiring  the  location  to  be 
marked  on  the  ground  is  to  fix  the  claim 
to  prevent  floating  or  swinging  so  that 
those  who  in  good  faith  are  looking  for 
unoccupied  ground  in  the  vicinity  of  pre- 
vious locations  may  be  enabled  to 
ascertain  exactly  what  has  been  appro- 
priated in  order  to  make  their  locations 
upon  the  residue,  but  the  law  does  not 
in  express  terms  require  the  boundaries 
to  be  marked.  It  requires  the  location  to 
be  so  marked  that  its  boundaries  can  be 
readily  traced.  Stakes  at  the  corners  do 
not  mark  the  boundaries.  They  are  only 
a  means  by  which  the  boundaries  may  be 
traced,  but  they  are  sufficient  for  that 
purpose.  Book  v.  Justice  Min.  Co.,  58 
Fed.  106  (1893);  Walsh  v.  Erwin,  115 
Fed.  531  (1902^;  Gleeson  v.  Martin 
White  Min.  Co.,  13  Nev.  442,  9  Mor.  Min. 
R.  429   (1878). 

Marking  the  boundaries  of  the  surface 
of  the  «;laim  as  required  by  statute  is 
one  of  the  first  steps  towards  a  location. 
It  serves  a  double  purpose.  It  operates 
to  determine  the  right  of  the  claimant 
as  between  himself  and  the  general  gov- 
ernment, and  to  notify  third  persons  of 
his  rights.     Another  seeking  the  benefits 


of  the  law,  and  going  upon  the  ground, 
is  distinctly  notified  of  the  appropria- 
tion and  can  ascertain  its  boundaries. 
He  may  thus  make  his  own  location  with 
certainty,  knowing  that  the  boundaries 
of  the  other  cannot  be  changed  so  as 
to  encroach  on  grounds  duly  appropri- 
ated prior  to  the  change.  The  preven- 
tion of  fraud  by  swinging  or  floating  is 
one  of  the  purposes  served.  Gird  v.  Cal- 
ifornia Oil  Co.,  60  Fed.  531,  18  Mor.  Min. 
R.  45   (1894). 

Marking  the  boundaries  of  the  surface 
claim  as  required  by  statute  is  one  of 
the  first  steps  toward  a  location.  It 
serves  a  double  purpose.  It  operates 
to  determine  the  right  of  the  claimant  as 
between  himself  and  the  general  govern- 
ment and  to  notify  third  persons  of  his 
rights.  Pollard  v.  Shively,  5  Colo.  309 
(1880). 

The  intention  of  the  law  is  to  give 
one  seeking  the  locus  of  a  recorded 
claim  something  in  the  nature  of  an 
initial  point  from  which  to  start  and, 
following  the  course  or  distance  given, 
find  with  reasonable  certainty  the  claim 
located.  The  identification  must  be  by 
reference  to  some  natural  object  or  per- 
manent   monument.      Stone    monuments^ 


622 


"Water  and  Mineral  Cases. 


[Idaho 


he  had  worked  and  was  in  possession  of  said  fraction  for  more  than  five  years,  and 
that  during  said  period  of  time  there  was  no  adverse  claim  made  to  said  premises 
or  to  any  part  thereof,  is  fully  sustained  by  the  evidence. 

Action  in  support  of  adverse  claim  under  United  States  Rev.  Stat., 
§  2326.  Appeal  from  judgment  for  defendant  and  order  denying 
motion  for  new  trial.     Affirmed. 


For  appellant — Franklin  Pfirman. 

For  appellee — Gray  &  Knight. 

SULLIVAN,  C.  J.  This  is  an  action  in  support  of  an  adverse  claim 
under  the  provisions  of  Rev.  St.  U.  S.,  §  2326  (U.  S.  Comp.  St.  1901,  p. 
1430).  It  appears  that  in  June,  1908,  the  respondent,  Murphy,  claiming 
to  be  the  owner  of  the  Murphy  fraction  lode,  situated  in  Lelande  mining 
district,  Shoshone  County,  made  application  for  a  patent  therefor  in  the 
United  States  Land  Office  at  Coeur  d'Alene,  to  which  application  the  ap- 
pellant, the   Flynn   Group   Mining   Company,   which   will   hereafter   be 


blazed  trees,  the  point  of  intersection  of 
well  known  gulches,  ravines  or  roads, 
prominent  buttes,  hills,  mining  shafts, 
etc.,  are  enumerated  as  satisfying  the 
rules  of  the  law.  Drummond  v.  Long, 
9  Colo.  538,  13  Pac.  543,  15  Mor.  Min. 
R.  510   (1886). 

The  whole  object  of  the  statute  which 
requires  a  reference  to  a  natural  object 
or  permanent  monument,  is  to  direct  the 
attention  of  the  after-comer  to  the  lo- 
cality of  the  claim,  and  if  he  goes  on 
the  ground  and  finds  the  claim  properly 
staked  he  may  then  go  to  the  record  and 
find  out  whether  the  statute  has  other- 
wise been  complied  with  and  if  therein 
there  is  a  statutory  description,  the 
record  is  adequate  and  sufficient.  Dun- 
can v.  Fulton,  15  Colo.  App.  140,  61  Pac. 
244,  20  Mor.  Min.  R.   522    (1900). 

IV.  Time  of  Marking. 
A.  Within  Reasonable  Time. 
The  discoverer  is  entitled  to  a  reasona- 
ble time  after  discovery  within  which  to 
complete  his  location.  What  would  be 
a  reasonable  time  would  depend  upon 
circumstances  affecting  the  ability  of 
the  locator  to  properly  define  his  claim, 
and  these  circumstances  should  be  such 


as  pertain  to  the  ground  to  be  located, 
its  character,  the  means  of  properly 
marking  the  ground  sought  to  be  located 
and  the  ability  to  properly  ascertain 
the  dimensions  and  course  or  strike  of 
the  vein  on  account  of  which  the  location 
is  to  be  made.  In  affording  this  reason- 
able time  to  complete  a  location,  the 
object  is  to  eliminate,  so  far  as  circum- 
stances will  permit,  guesswork  in  the 
location  of  the  claim.  Doe  v.  Waterloo 
Min.  Co.,  70  Fed.  455,  17  C.  C.  A.  190,  18 
Mor.  Min.  R.  265   (1895). 

The  signing  of  a  notice  and  posting  it 
on  a  tree  at  the  northeast  corner  of  the 
claim,  and  also  the  building  thereof  a 
monument  of  stone  and  pieces  of  decayed 
wood  and  the  next  day  putting  up  the 
center  and  another  corner  monument  and 
twelve  days  later  monuments  at  the 
other  corners,  so  that  the  lines  of  the 
boundaries  could  be  readily  traced,  is  a 
sufficient  compliance  with  the  law.  Don- 
ahue v.  Meister,  88  Cal.  31,  25  Pac. 
1099,  22  Am.  St.  Rep.  283   (1891). 

B.      Before    Other    Rights    Intervene. 

Where  the  original  marking  was  de- 
fective, but  the  claim  was  properly 
marked  before  a  subsequent  location  was 


1910] 


Flynn  Geoup  Mining  Co.  v.  Murphy. 


623 


referred  to  as  the  mining  company  or  the  appellant,  filed  its  adverse  claim 
to  said  application,  and  thereafter  on  October  6,  1908,  commenced  this 
action  in  support  of  said  adverse  claim.  The  mining  Company's  adverse 
claim  was  based  on  its  alleged  ownership  of  the  Erin  fraction  lode  claim, 
which  it  is  alleged  covered  almost  the  identical  ground  included  in  the 
Murphy  fraction  claim.  The  contention  of  the  mining  company  is  that 
the  Murphy  fraction  claim  was  not  a  valid  location,  for  the  reason  that 
the  ground  included  within  its  boundaries  was  at  the  time  of  its  location 
included  in  other  mining  locations,  to-wit,  the  Snowdrift,  the  Buffalo,  and 
Parret  fractions.  The  issues  as  made  by  the  pleadings  were  tried  by  the 
court  without  a  jury,  the  findings  of  fact  and  judgment  were  made  and 
entered  in  favor  of  the  respondent.  Thereafter  a  motion  for  a  new 
trial  was  denied,  and  this  appeal  is  from  the  judgment  and  order  denying 
the  new  trial.  The  following,  among  other  facts,  appear  from  the 
record : 


made,  the  subsequent  locator  cannot  ob- 
ject upon  the  ground  that  the  original 
marking  was  defective.  Jupiter  Min.  Co. 
v.  Bowdie  Consol.  Min.  Co.,  11  Fed.  666, 
7  Sawy.  96,  4  Mor.  Min.  R.  411    (1881). 

A  subsequent  locator  cannot  object  to 
the  first  location  as  marked  on  the 
ground  within  the  time  prescribed  by 
a  statute,  provided  it  was  sufficiently 
marked  before  his  location.  Crown 
Point  Gold  Min.  Co.  v.  Crismon,  39  Or. 
364,  65  Pac.  87,  21  Mor.  Min.  R.  406 
(1901). 

Where  boundaries  are  properly  marked 
before  a  subsequent  location  is  attempted 
to  be  made,  it  is  immaterial  that  they 
were  not  properly  marked  in  the  first 
instance.  McPherson  v.  Julius,  17  S.  D. 
98,  95  N.  W.  428    (1903). 

The  marking  of  boundaries  is  not  re- 
quired to  be  done  upon  the  day  of  the 
posting  of  the  location  notice.  It  is  suffi- 
cient if  it  be  done  within  a  reasonable 
time,  prior  to  the  intervention  of  ad- 
verse rights  by  others.  Brockbank  v.  Al- 
bion Min.  Co.,  29  Utah  367,  81  Pac.  863 
(1905). 

The  United  States  Revised  Statute  pre- 
scribes no  exact  time  within  which  the 
marking  on  the  ground  shall  be  done,  and 
therefore,  a  reasonable  time  therefor  is 
impliedly  given.    As  to  what  is  a  reason- 


able time  is  a  question  of  law,  and  de- 
pends upon  the  circumstances  of  each 
particular  case.  Held  that  eight  days 
was  not  an  unreasonable  time.  Union 
Min.  &  Mill.  Co.  v.  Leitch,  24  Wash.  585, 
64  Pac.  829,  85  Am.  St  Rep.  961   (1901). 

V.      Character    of    Marks    Not    Pre- 
scribed   by    Federal    Law. 

Notice  describing  the  location  as  a 
placer  mining  claim  1,500  feet  running 
with  the  creek  and  300  feet  on  each  side 
from  the  center  of  the  creek  known  as 
McKinley  Creek  in  Porcupine  Mining 
District,  written  upon  a  stump  or  snag 
in  the  creek,  was  held  a  sufficient  loca- 
tion, as  the  creek  was  identified,  and  be- 
tween it  and  the  stump  there  was  a  defi- 
nite relation  which  combined  with  the 
measurements,  enabled  the  boundaries  of 
the  claim  to  be  readily  traced.  McKin- 
ley Creek  Min.  Co.  v.  Alaska-United 
Min.  Co.,  183  U.  S.  563,  22  Sup.  Ct.  84, 
46  L.  Ed.  331    (1902). 

Congress  has  not  prescribed  how  the 
location  shall  be  made.  It  has  simply 
provided  that  it  "must  be  distinctly 
marked  on  the  ground  so  that  its  boun- 
daries can  be  readily  traced,"  leaving 
the  details,  the  manner  of  marking,  to 
be    settled    by   the    regulations    of    each 


624 


Water  and  Mineral  Cases. 


[Idaho 


On  April  8,  1887,  Francis  Murphy,  the  respondent  (whose  name  ap- 
pears in  the  record  sometimes  as  Francis  and  sometimes  as  Frank 
Murphy)  and  Andrew  Short  located  the  Snowdrift  lode  mining  claim,  and 
in  the  location  notice  described  said  claim  as  "Commencing  from  dis- 
covery, running  N.  W.700  feet,  running  S.  E.  800  feet  from  discovery, 
bounded  on  N.  W.  by  Black  Bear  and  Cape  Horn  lodes."  In  July  of 
1899,  one  William  P.  Flynn,  who  owned  two  claims  known  as  the 
"Buffalo  Fraction"  and  "Parret  Fraction,"  situated  in  an  easterly  direc- 
tion from  the  Snowdrift,  had  the  same  surveyed  for  a  United  States 
patent.  It  appears  that  the  westerly  end  lines  of  those  two  claims  were 
drawn  in  by  the  surveyor  in  an  easterly  direction,  leaving  some  vacant 
ground  between  the  Snowdrift  on  the  easterly  end  and  the  Buffalo  and 
Parret  fractions  on  the  westerly  ends;  that  Flynn  had  a  number  of 
mining  claims  on  Flynn  mountain  where  said  named  claims  were  located, 
and  informed  a  man  by  the  name  of  Faulkner  of  the  vacant  ground,  and 
advised  him  that  inasmuch  as  he  had  no  mining  ground  he  had  better 
locate  it;  that  Flynn  had  lived  upon  that  mountain  for  a  great  many 

marked  or  upon  what  part  of  the  claim 
they  shall  be  placed.  Any  marking  by 
stakes,  mounds  and  written  notices  is 
sufficient,  if  the  boundaries  can  be  read- 
ily traced  therefrom.  Jupiter  Min.  Co. 
v.  Bowdie  Consol.  Min.  Co.,  11  Fed.  666, 
7  Sawy.  96,  4  Mor.  Min.  R  411  (1881). 

The  location  must  be  distinctly 
marked  upon  the  ground  so  that  its 
boundaries  can  be  readily  traced.  This 
is  all  the  statute  requires.  The  law  does 
not  state  how  the  markings  shall  be 
made,  the  kind  of  markings,  or  in  what 
particular  place  or  places  on  the  claim 
they  shall  be  made.  Stakes  or  posts 
or  piles  of  stone  and  boulders  are  mark- 
ings. Blazed  trees  along  the  boundaries 
of  the  claim  or  at  the  corners  thereof 
are  markings.  Cutting  away  under- 
growth or  making  a  trail  through  the 
timber  along  the  sides  or  ends  of  the 
claim,  putting  up  a  stake  at  the  point  of 
discovery,  blazing  stumps  or  posting  a 
notice  on  the  ground,  placing  such 
notice  in  a  tin  can  and  attaching  it  to 
a  stake,  fastening  such  notice  to  a  tree 
or  placing  it  in  a  box  or  frame,  are  all 
markings  within  the  laws  of  the  United 


mining  district.  Whether  such  location 
shall  be  made  by  stone  posts  at  the  four 
corners  or  simply  by  wooden  stakes,  or 
how  many  of  such  posts  or  stakes  shall 
be  placed  along  the  sides  or  ends  of  the 
location,  or  what  other  matter  of  detail 
must  be  pursued  in  order  to  perfect  a 
location  is  left  to  the  varying  judgments 
of  the  mining  districts.  Del  Monte  Min. 
&  Mill.  Co.  v.  Last  Chance  Min.  &  Mill. 
Co.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43 
L.  Ed.  72,  19  Mor.  Min.  R.  370   (1898). 

To  make  a  valid  location  it  is  required 
that  "the  location  must  be  distinctly 
marked  on  the  ground  so  that  its  boun- 
daries can  be  readily  traced,"  but  the 
law  does  not  prescribe  or  define  what 
kind  of  marks  shall  be  made  or  upon 
what  part  of  the  ground  or  claim  they 
shall  be  placed.  Any  marking  on  the 
ground  claimed  by  stakes  and  mounds, 
and  written  notices  whereby  the  boun- 
daries of  the  claim  located  can  be  readily 
traced,  is  sufficient.  North  Noonday 
Min.  Co.  v.  Orient  Min.  Co.,  1  Fed.  522, 
6  Sawy.  299,  9  Mor.  Min.  R.  529   (1880). 

The  law  does  not  prescribe  by  what 
kind   of   marks   the  boundaries   shall   be 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


625 


years  and  knew  the  claims,  their  discoveries  and  corners;  that  he  and 
Faulkner  went  to  the  discovery  on  the  Snowdrift  claim  and  measured  off 
in  a  southeasterly  direction  eight  hundred  feet  for  the  purpose  of  ascer- 
taining how  far  in  a  southeasterly  direction  the  Snowdrift  ground  ex- 
tended. They  thereupon  made  a  discovery  on  said  vacant  ground  and 
located  the  same  by  staking  the  ground  and  extending  the  stakes  outside 
of  the  limits  of  the  vacant  ground  in  order  that  they  might  be  sure  and 
take  in  all  of  the  ground  there  vacant.  Said  claim  was  located  in  the 
name  of  Frank  Murphy  as  the  Murphy  fraction,  and  the  location  notice 
was  filed  for  record  on  August  26,  1899.  It  appears  that  during  each 
subsequent  year  Murphy  has  performed  the  assessment  work,  and  has 
constructed  two  tunnels  upon  that  ground;  that  in  June,  1906,  Joseph 
F.  Whelan,  who  was  the  secretary  and  general  manager  in  full  charge 
of  said  company's  affairs,  knew  of  the  Murphy  fraction  claim  and  the 
ground  included  within  its  boundaries,  and  knew  that  it  was  claimed  by 
the  respondent,  and  knew  that  Murphy  had  constructed  two  tunnels  on 
said  fraction ;  but  on  an  examination  by  Whelan  of  the  recorded  location 


States.     Meydenbauer  v.  Stevens,  78  Fed. 
787,  18  Mor.  Min.  R.  578    (1897). 

Section  2324,  United  States  Rev. 
Stats.,  does  not  require  the  boundary 
lines  to  be  indicated  by  physical  marks 
or  monuments,  nor  define  what  kind  of 
marks  shall  be  made  nor  upon  what  part 
of  the  ground  claimed,  but  any  marking, 
whether  by  stakes,  mounds,  monuments 
or  written  notices,  whereby  the  bounda- 
ries can  be  readily  traced,  is  sufficient. 
Oregon  King  Min.  Co.  v.  Brown,  119  Fed. 
48,  22  Mor.  Min.  R.  414   (1902). 

VI.      Permanent    Monument    or    Nat- 
ural Object — What  Sufficient  as. 

The  discovery  cut  may  be  recognized  as 
a  monument.  McEvoy  v.  Hyman,  25 
Fed.  596,  15  Mor.  Min.  R.  397  (1885) . 

Where  claims  are  located  by  serial 
numbers  above  and  below  discovery  the 
court  will  infer,  in  the  absence  of  evi- 
dence to  the  contrary,  that  the  other 
claims  of  the  series  are  well  known  and 
they  are  thus  sufficient  to  refer  to  as 
permanent  monuments.  Butler  v.  Good 
Enough  Min.  Co.,   1  Alaska  246    (1901). 

Reference  to  a  located  mining  claim  is 
sufficient  reference  to  a  natural  object  or 
W.   &.M.— 40 


permanent  monument  in  fixing  the  boun- 
daries of  a  location  of  another  claim. 
Shattuck  v.  Costello,  8  Ariz.  22,  68  Pac. 
529    (1902). 

Statement  in  a  location  notice  that 
claim  is  "bounded  on  the  east  by  the 
Handy  Mine  and  is  one  quarter  mile 
south  of  Borax  Road  and  about  three 
miles  east  of  the  town  of  Calico,"  held 
sufficient  reference  to  natural  objects. 
McCann  v.  McMillan,  129  Cal.  350,  62 
Pac.  31,  21  Mor.  Min.  R.  6   (1900). 

The  prominent  monuments  of  a  neigh- 
boring mining  claim  have  been  regarded 
as  sufficient  as  a  prominent  monument. 
Drummond  v.  Long,  9  Colo.  538,  13  Pac. 
543,  15  Mor.  Min.  R.  510  (1886). 

It  has  been  many  times  held  that 
mountains,  hills,  canyons,  gulches,  ra- 
vines, and  like  natural  elements  in  the 
landscape,  are  natural  objects  and  per- 
manent monuments  to  which  reference 
may  be  made.  Duncan  v.  Fulton,  15 
Colo.  App.  140,  61  Pac.  244,  20  Mor. 
Min.   R.   522    (1900). 

A  description  tied  to  a  patented  min- 
ing claim  is  sufficient.  Duncan  v.  Ful- 
ton, 15  Colo.  App.  140,  61  Pac.  244,  20 
Mor.  Min.  R.  522   (1900). 


626 


Water  and  Mineral  Oases. 


[Idaho 


notice  of  the  Murphy  fraction,  he  concluded  that  said  notice  was  not 
sufficient  and  proceeded  to  locate  said  ground  by  the  Erin  fraction  claim 
on  behalf  of  said  mining  company.  Murphy  having  ascertained  that  the 
original  location  notice  of  the  Murphy  fraction  was  defective,  made  an 
amended  location  of  said  claim  on  November  13,  1906,  and  thereafter 
made  application  for  a  United  States  patent  for  said  claim,  and  the 
mining  company's  adverse  claim  is  based  upon  said  Erin  fraction  location. 
The  Erin  fraction  lode  was  located  long  after  the  Murphy  fraction 
lode,  and  the  title  of  the  appellant  to  the  ground  in  controversy  depends 
upon  the  invalidity  of  the  Murphy  fraction  location.  Appellant  largely 
rests  its  case  on  the  fact  that  the  Murphy  fraction  was  an  invalid  location, 
for  the  reason  that  it  was  located  on  premises  included  within  the  Snow- 
drift claim.  The  Snowdrift  claim  was  located  in  1887;  the  Murphy 
fraction  on  August  26,  1899 ;  the  Erin  fraction  on  June  6,  1906.  Appel- 
lant contends  that  the  Snowdrift  claim  was  staked  upon  the  ground,  and 
included  within  its  exterior  boundaries  the  discovery  of  the  Murphy 
fraction  lode,  and  that  said  Murphy  fraction  lode  was  therefore  a  void 

so  marked  that  the  boundaries  can  be 
readily  traced  and  is  a  sufficient  compli- 
ance with  the  law.  North  Noonday  Min. 
Co.  v.  Orient  Min.  Co.,  1  Fed.  522,  6 
Sawy.  299,  9  Mor.  Min.  R.  529  (1880). 

The  law  does  not  in  express  terms  re- 
quire the  boundaries  to  be  marked.  It 
requires  the  location  to  be  so  marked 
that  its  boundaries  can  be  readily  traced. 
Stakes  at  the  corners  do  not  mark  the 
boundaries.  They  are  only  a  means  by 
which  the  boundaries  may  be  traced,  but 
they  are  sufficient  for  that  purpose. 
Book  v.  Justice  Min.  Co.,  58  Fed.  106, 
17  Mor.  Min.  R.  617  (1893). 

The  placing  at  each  corner  of  a  stake 
about  four  feet  high  and  the  placing  of 
small  stakes  in  the  side  lines  and  at  the 
point  of  discovery,  and  posting  notice 
upon  a  tree,  is  a  sufficient  marking  of  the 
location,  although  the  name  of  the 
claim  is  not  put  upon  the  stakes.  Smith 
v.  Newell,  86  Fed.  56  (1898)   . 

Painted  posts  at  the  four  corners  of  a 
mill-site  is  a  sufficient  marking.  Val- 
calda  v.  Silver  Peak  Mines,  86  Fed.  90, 
29  C.  C.  A.  591    (1898). 

A  blazed  tree  at  the  point  where  the 
location  notice  is  posted  and  on  one  of 
the  boundary  lines     and     three     corner 


The  boundaries  of  adjoining  claims 
may  be  a  permanent  monument  to  iden- 
tify a  claim.  Russell  v.  Chunasero,  4 
Mont.  309,  1  Pac.  713   (1882). 

Trees  blazed  and  squared,  rock  monu- 
ments, or  the  prospect  hole,  are  perma- 
nent monuments,  within  the  meaning  of 
the  United  States  Rev.  Stats.,  sec.  2324. 
Hanson  v.  Fletcher  10  Utah  266,  37  Pac. 
480   (1894). 

VII.      What   Is  a  Sufficient   Marking. 

The  marking  must  be  sufficiently  plain 
and  distinct  to  enable  the  sheriff  in 
case  of  a  recovery  to  execute  a  writ  of 
possession,  or  to  enable  a  surveyor  to 
ascertain  the  exact  limits  of  the  location. 
Clacier  Mountain  Silver  Min.  Co.  v. 
Willis,  127  U.  S.  471,  8  Sup.  Ct.  1214,  32 
L.  Ed.  172    (1887). 

If  the  center  line  of  a  location  of  a 
lode  claim  lengthwise  along  the  lode  be 
marked  by  a  prominent  stake  or  monu- 
ment at  each  end  thereof,  upon  one  or 
both  of  which  is  placed  a  written  notice 
showing  that  the  locator  claims  the 
length  of  said  line  upon  the  lode  from 
stake  to  stake,  and  a  certain  specified 
number  of  feet  in  width  on  each  side  of 
eaid  line,  such  location  of  the  claim  is 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


627 


location.  There  was  a  conflict  in  the  evidence  upon  this  point,  and  the 
court  expressly  found  that  the  discovery  of  the  Murphy  fraction  lode 
was  not  made  within  the  exterior  boundaries  of  the  Snowdrift  claim, 
but  was  made  at  a  point  easterly  from  the  southeasterly  end  line  of  said 
claim. 

There  was  some  controversy  over  the  exact  location  of  the  original 
northeast  corner  of  the  Snowdrift  claim.  There  is  a  direct  conflict  in 
the  testimony  upon  that  question,  and  the  trial  court  in  its  seventh  find- 
ing of  fact,  among  other  things,  found  as  follows :  "That  the  north- 
east corner  stake  on  the  said  Snowdrift  claim  was  placed  at  a  point  from 
five  to  eight  feet  in  a  northeasterly  direction  from  the  present  patent 
corner  on  the  Snowdrift  lode  claim  which  is  located  at  the  same  place 
as  the  northwest  patent  corner  of  the  Murphy  fraction  lode  claim." 
The  court  having  thus  found  upon  conflicting  evidence  the  location  of 
that  corner  stake,  this  court  upon  all  of  the  evidence  on  that  point  is  not 
inclined  to  reverse  that  finding.  However,  on  the  motion  for  a  new  trial 
the  appellant  introduced  the  field  notes,  plats  and  survey  of  the  Buffalo 


stakes  at  stated  distances  from  the  no- 
tice and  from  each  other,  one  corner 
stake  having  been  omitted  (whether 
from  the  nature  of  the  surface  of  the 
ground  or  not  not  being  shown),  but  the 
distance  of  the  lines  leading  to  and  from 
that  corner  being  accurately  stated  so 
that  a  surveyor  would  be  enabled  with- 
out difficulty  to  ascertain  the  exact 
limits  of  the  location,  and  so  that  a. 
prospector  could  easily  ascertain  the 
lines  of  the  ground  staked  off,  is  a  suffi- 
cient marking  of  a  location.  Walsh  v. 
Erwin,  115  Fed.  531   (1902). 

The  boundaries  of  land  claimed  for 
mining  purposes  must  be  indicated  by 
such  distinct  physical  marks  or  monu- 
ments as  will  fairly  advertise  to  all  con- 
cerned where  and  what  it  is,  or  in  other 
words,  its  extent.  English  v.  Johnson,  17 
Cal.  107  (1860);  Roberts  v.  Wilson,  1 
Utah  296   (1876). 

The  physical  marks  placed  upon  the 
ground  must  be  of  such  prominence  as 
to  enable  one  who  honestly  endeavors  to 
do  so  to  discover  whether  the  land  has 
been  appropriated  for  mining  purposes. 
Hess  v.  Winder,  30  Cal.  349,  12  Mor. 
Min.  R.  217  (1866). 


A  mining  location  is  not  distinctly 
marked  on  the  ground  by  the  posting  of 
a  notice  on  a  tree  at  each  end  of  the 
claim.  Holland  v.  Mt.  Auburn  Gold 
Quartz  Min.  Co.,  53  Cal.  149    (1878). 

The  posting  of  a  location  notice  in  the 
center  of  the  claim  calling  for  definite 
length  and  width  of  ground  is  not  a 
marking  of  the  boundaries,  within  the 
meaning  of  the  statute.  Gelcich  v.  Mo- 
riarty,  53  Cal.  217,  9  Mor.  Min.  R.  498 
(1898). 

Posting  notice  upon  the  ledge  claiming 
a  certain  number  of  feet  in  each  direc- 
tion is  not  a  sufficient  marking  of  the 
boundaries  as  required  by  law.  Newbill 
v.  Thurston,  65  Cal.  419,  4  Pac.  409 
(1884). 

The  placing  of  stakes  or  monuments  at 
each  corner  of  the  claim,  from  which, 
with  the  description  in  the  notice,  the 
claim  and  its  boundaries  may  be  readily 
found,  is  a  sufficient  mark.  Thi  Prat  v. 
James,  65  Cal.  555,  14  Pac.  375    (1884). 

Stakes  and  stone  monuments  at  each 
corner  and  in  the  center  of  each  end  line, 
with  notices  sufficient  for  identification, 
is  a  sufficient  compliance  with  the  statute 
requiring  the  boundaries  to  be  distinctly 


628 


Water  and  Mineral  Cases. 


[Idaho 


and  Parret  fraction  lodes  and  the  affidavit  of  Mr.  Pfirman,  which  it  is 
contended,  clearly  establishes  the  fact  that  the  court  made  an  error  in 
said  finding  and  that  said  plat  and  field  notes  show  that  Mr.  Flynn  testified 
falsely  on  the  trial  when  he  testified  that  said  northeast  corner  of  the 
Snowdrift  lode  was  within  five  or  eight  feet  of  the  corresponding  corner 
as  patented. 

In  opposition  to  said  affidavit,  the  respondent  filed  the  affidavit  of 
Arthur  A.  Booth,  deputy  mineral  surveyor,  who  surveyed  said  Buffalo 
and  Parret  fractions  for  a  patent  in  the  month  of  July,  1899.  From 
that  affidavit  it  appears  that  said  fractions  were  staked  for  patent  and 
the  patent  corners  established,  and  the  westerly  end  lines  of  the  said 
claims  were  drawn  in  in  an  easterly  direction,  and  that  a  large  portion 
of  the  land  now  included  in  the  Murphy  fraction  lode  was  originally 
within  the  exterior  boundaries  of  the  Buffalo  and  Parret  fraction  lodes, 
and  upon  establishing  the  patent  corners  of  said  fractions,  the  land  now 
included  within  the  Murphy  fraction  lode,  or  a  large  portion  thereof, 
was  left  outside  of  said  fraction  lodes  as  established  upon  the  ground  by 
that  survey ;  that  the  patent  plat  of  the  survey  for  said  fractions  and  in 


marked.  Howeth  v.  Sullenger,  113  Cal. 
547,  45  Pac.  841   (1896). 

The  law  requires  the  marking  of  the 
claim  upon  the  ground  to  be  done  in  such 
a  manner  that  any  person  of  reasonable 
intelligence  may  go  upon  the  ground  and 
readily  trace  the  claim  out,  and  readily 
find  the  boundaries  and  limits  of  the 
claim  without  instructions,  advice  or  in- 
formation from  any  one  or  thing  other 
than  the  marking  upon  the  ground;  and 
it  is  not  necessary  or  required  that  such 
person  shall  have  a  copy  of  the  notice 
of  location  or  necessarily  use  it  in  trac- 
ing the  boundaries  of  the  claim,  but 
where  such  notice  is  posted  upon  the 
claim  and  constitutes  a  part  of  the  mark- 
ing of  such  claim  upon  the  ground,  it 
may  be  used  as  a  part  of  the  means  by 
which  the  boundaries  of  the  claim  can 
be  traced.  Willeford  v.  Bell,  117  Cal. 
17,  49  Pac.  6  (1897). 

While  the  claim  must  be  distinctly 
marked  upon  the  ground,  it  is  not  re- 
quired that  the  location  notice  should 
so  state.  McCann  v.  McMillan,  129  Cal. 
350,  62  Pac.  31,  21  Mor.  Min.  R.  6 
(1900). 


Where  a  claim  is  located  from  a  com- 
mon base  by  a  serial  number,  the  placing 
of  a  center  post  on  each  end  with  a 
notice  of  location  posted  thereon  is  a 
sufficient  marking  of  the  boundaries,  and 
especially  where  such  marking  is  cus- 
tomary with  the  miners  of  the  district. 
Loeser  v.  Gardiner,  1  Alaska  641   (1902). 

If  the  center  line  of  a  location  length- 
wise up  and  down  the  creek  is  marked 
by  a  stake  or  monument  at  each  end 
thereof,  upon  one  or  both  of  which  is 
placed  a  written  notice  showing  that  the 
locator  claims  the  length  of  said  line 
upon  the  claim,  from  stake  to  stake,  and 
a  certain  specified  number  of  feet  in 
width  on  each  side  of  the  line,  the  loca- 
tion is  so  marked  that  the  boundaries 
can  be  readily  traced  unless  the  condi- 
tions or  topography  of  the  country,  or 
the  great  amount  of  brush  or  timber  on 
the  land  would  prevent  a  person  making 
an  honest  and  bona  fide  effort  to  trace  or 
ascertain  the  boundaries  from  doing  so. 
Moore  v.  Steelsmith,  1  Alaska  121 
(1901). 

If  the  conditions  are  such  that  a  per- 
son passing  over  the  land  could  see  noth- 


1910] 


Flynn  Geoup  Mining  Co.  v.  Mukphy. 


629 


the  field  notes  he  reported  the  Snowdrift  lode  unsurveyed,  as  lying  west 
of  the  Buffalo  and  Parret  fraction  lodes,  and  so  marked  upon  the  patent 
plat;  that  he  did  so  purely  from  hearsay,  and  he  did  not  at  that  time 
survey  to  any  of  the  corners  of  the  Snowdrift  lode,  and  that  he  did  not 
intend  and  did  not  show,  either  by  his  plat  or  field  notes,  that  the  north- 
east corner  of  the  Snowdrift  was  identical  with  corner  No.  2  of  the 
Buffalo  fraction  lode;  but  referring  specifically  to  his  field  notes,  he  did 
report  that  corner  No.  2  of  the  Buffalo  fraction  lode  was  identical  with 
corner  No.  2  of  the  Josephine  lode  and  corner  No.  9  of  the  Exchequer, 
and  that  said  field  notes  and  survey  did  not  show  and  did  not  pretend 
to  show  any  of  the  corners  of  the  Snowdrift  lode;  that  he  simply  marked 
the  name  of  the  Snowdrift  lode  unsurveyed  on  said  plat,  which  he  was 
told  was  situated  in  a  westerly  direction. 

We  have  carefully  considered  the  plats  and  affidavits  used  on  motion 
for  a  new  trial,  and  are  satisfied  that  the  court  came  to  the  right  con- 
clusion in  regard  to  the  location  of  the  northeast  corner  of  said  Snowdrift 
lode  claim,  and  did  not  err  in  denying  a  new  trial  on  the  ground  of  newly 
discovered  evidence. 


ing  to  indicate  that  another  had  made 
a  location,  if  whatever  had  been  done 
towards  a  location  at  some  prior  time 
was  so  hidden  that  persons  honestly 
looking  for  mineral  land  upon  which  to 
locate  could  not  be  expected  to  observe  it, 
it  should  not  be  deemed  such  a  location 
as  the  statute  contemplates.  Moore  v. 
Steelsmith,  1  Alaska  121   (1901). 

A  legal  and  fair  location  of  a  mining 
claim  would  not  be  made  by  placing  no- 
tices upon  a  tree  or  stake  that  was  sit- 
uated in  an  inaccessible  place,  or  where 
it  was  so  surrounded  by  brush  and  trees 
growing  upon  the  land  that  it  could  not 
be  seen,  or  that  a  person  passing  over 
said  ground,  and  honestly  seeking  to 
make  a  location,  could  not,  because  of 
such  situation,  be  apprised  of  the  former 
location  having  been  made.  Moore  v. 
Steelsmith,  1  Alaska  121   (1901). 

The  requirements  of  the  statute  are 
not  necessarily  fulfilled  by  merely  setting 
stakes  at  each  of  the  corners  and  at  the 
center  of  the  end  lines,  unless  the  to- 
pography of  the  ground  and  the  sur- 
rounding country  are  such  that  a  person 
accustomed    to   tracing   lines    of    mining 


claims  can,  after  reading  a  description 
of  the  claim  in  the  posted  or  recorded 
notice   of   location  or   upon  the   stakes, 
by    a    reasonable    and    bona    fide    effort 
to       do    so,    find    all    the    stakes    and 
thereby    trace    the    boundaries.      Where 
the  country  is  broken  or  the  view  from 
one  stake  or  monument  to  another  is  ob- 
structed by  intervening  timber  or  brush, 
it  may  be  necessary  to  blaze  trees  along 
the  line,  or  cut  away  the  brush  or  set 
more  stakes  at  such  distances  that  they 
may  be  seen  from  one  to  the  other,  in  a 
way  to   indicate   the  lines   so   that  the 
boundaries    can   be    readily  traced.    Van 
Valkenburg  v.  Huff,  1  Nev.  142   (1865). 
Two  stakes  at  the  ends  of  the  claim 
on  a  line  with  the  croppings  is  sufficient, 
where  the  width  of  the  claim  is  fixed  by 
local   rules.      Gleeson   v.    Martin    White 
Min.  Co.,  13  Nev.  442,  9  Mor.  Min.  R. 
429   (1878). 

Setting  stakes  at  the  four  corners  of 
the  claim  is  a  sufficient  marking.  Glee- 
son  v.  Martin  White  Min.  Co.,  13  Nev. 
442,  9  Mor.  Min.  R.  429   (1878). 

The  hewing,  blazing,  and  marking  of 
trees  which  stand  at  the  corners  where 


630 


Water  and  Mineral  Cases. 


[Idaho 


It  appears  from  the  evidence  of  the  locators  of  the  Murphy  fraction 
lode  that  when  they  went  to  locate  it,  they  went  to  the  discovery  shaft 
or  point  on  the  Snowdrift  lode  and  measured  off  in  a  southeasterly  direc- 
tion eight  hundred  feet  from  that  point,  that  being  the  length  upon  the 
lode  in  that  direction  called  for  by  the  location  notice,  and  then  located 
the  Murphy  fraction  easterly  of  and  adjoining  said  Snowdrift  location. 
But  it  is  contended  by  appellant  that  the  easterly  end  line  of  said  Snow- 
drift claim  as  marked  upon  the  ground  extended  more  than  eight  hun- 
dred feet  easterly  from  said  point  of  discovery  and  for  that  reason  was 
included  in  said  claim,  and  was  not  open  to  location  at  the  time  of  the 
location  of  said  Murphy  fraction  lode;  that  if  said  Snowdrift  location 
included  more  ground  than  the  locators  were  entitled  to,  the  ground  in- 
cluded within  the  stakes  had  been  segregated  from  the  public  domain, 
and  was  not  subject  to  location  until  the  locators  adjusted  the  exterior 
lines  thereof  and  excluded  therefrom  any  surplus  ground  contained  there- 
in, and  cites  in  support  of  that  contention,  Belk  v.  Meagher,  104  U.  S. 
279,  26  L.  Ed.  735,  and  quotes  the  following  from  said  decision :   "Loca- 


posts  should  be  located,  is  a  substantial 
compliance  with  the  law  regarding  the 
marking  of  claims  by  the  planting  of 
posts  at  the  corners.  Marshall  v.  Har- 
ney Peak  Tin  Min.,  Mill.  &  Mfg.  Co.,  1 
S.  D.  350,  47  N.  W.  290    (1890). 

Trees  cut  off  about  three  feet  from 
the  ground  and  blazed  and  squared  may 
be  considered  and  regarded  as  stakes. 
Hanson  v.  Fletcher,  10  Utah  266,  37  Pac. 
480   (1894). 

A  mining  claim  marked  at  the  three 
corners  and  in  the  center  of  each  side 
line  by  substantial  stakes  is  sufficiently 
marked  to  comply  with  the  statute  re- 
quiring it  to  be  distinctly  marked  so 
that  its  boundaries  can  be  readily  traced. 
Warnick  v.  De  Witt,  11  Utah  324,  40 
Pac.  205   (1895). 

Marking  by  stakes  three  or  four  inches 
in  diameter  and  four  or  four  and  one- 
half  feet  high  at  each  corner  but  one, 
where  a  stump  was  marked,  is  a  suffi- 
cient marking  on  the  ground.  Bonanza 
Consol.  Min.  Co.  v.  Golden  Head  Min. 
Co.,  24  Utah  159,  80  Pac.  736   (1905). 

Marking  may  be  by  the  repairing  and 
restoring  of  old  monuments  upon  the 
premises,  and  the  adoption  of  the  same 


as  the  monuments  of  the  location.  Brock- 
bank  v.  Albion  Min.  Co.,  29  Utah  367,  81 
Pac.  863    (1905). 

VIII.  Condition  of  Country  and  Sur- 
roundings Considered. 
The  location  of  a  mining  lode  or  vein 
is  made  by  taking  up  a  quantity  of  land 
in  the  form  of  a  parallelogram  not  ex- 
ceeding 1,500  feet  in  length  and  600  feet 
in  width,  300  feet  on  each  side  of  the 
middle  of  the  vein  at  the  surface.  The 
location  of  this  piece  of  land  must  be  dis- 
tinctly marked  on  the  ground,  so  that  its 
boundaries  can  be  readily  traced.  The 
question  as  to  the  sufficiency  of  the 
stakes  and  monuments  to  enable  the  lo- 
cation to  be  traced  always  depends  to 
a  great  extent  upon  the  conformation 
and  condition  of  the  ground  located.  A 
location  on  a  hill  covered  by  a  dense 
forest  might  require  more  definite  mark- 
ing than  a  location  on  a  bald  mountain, 
where  the  stakes  wherever  placed  could 
be  readily  seen.  The  law  is  certainly 
complied  with  wherever  stakes  and 
monuments  are  so  placed  on  the  ground 
that  the  boundaries  of  the  location  can 
be  traced  with  reasonable  certainty  and 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


631 


tions  can  only  be  made  where  the  law  allows  it  to  be  done.  Any  attempt 
to  go  beyond  that  will  be  of  no  avail.  Hence  a  relocation  on  lands  actually 
covered  at  the  time  by  another  valid  and  subsisting  location  is  void ;  and 
this  not  only  against  the  prior  locator,  but  all  the  world,  because  the  law 
allows  no  such  thing  to  be  done." 

We  fully  recognize  the  rule  laid  down  by  the  Supreme  Court  of  the 
United  States  in  that  decision,  but  we  do  not  think  that  rule  applies 
to  the  facts  of  this  case.  The  location  notice  of  the  Snowdrift  claim 
provides  that  the  lode  claim  extends  from  the  point  of  discovery  seven 
hundred  feet  in  a  northwesterly  direction  and  eight  hundred  feet  in  a 
southeasterly  direction.  If  the  parties  who  located  it  in  fact  placed  their 
stakes  at  the  northeasterly  and  southeasterly  corners  of  said  claims  so  as 
to  take  in  more  ground  than  called  for  in  the  notice,  such  excess  was  not 
and  could  not  be  legally  included  in  that  location.  It  is  not  left  to  the 
pleasure  of  the  locator  to  adjust  his  boundaries  when  and  where  he  likes 
within  an  excessive  location  when  it  will  interfere  with  a  subsequent 
locator. 


•without  any  practical  difficulty.  Book 
v.  Justice  Min.  Co.,  58  Fed.  106,  17 
Mor.  Min.  R.  617   (1893). 

The  statute  requires  that  the  location 
must  be  marked  on  the  ground  so  that 
its  boundaries  can  be  readily  traced,  but 
it  does  not  prescribe  or  define  the  nature 
of  the  marks  or  the  position  of  the  same 
on  the  ground.  It  is  universally  held 
that  any  marking  on  the  ground  whereby 
the  boundaries  of  the  claim  may  be  read- 
ily traced  is  sufficient.  In  determining 
the  question,  the  court  or  jury  is  not 
limited  to  the  consideration  of  stakes 
or  other  permanent  monuments  on  the 
ground,  but  may  consider  the  topography 
of  the  ground,  the  condition  of  the  coun- 
try, and  the  surrounding  circumstances 
in  order  to  find  if  a  sufficient  marking 
has  been  made.  Charlton  v.  Kelly,  156 
Fed.  433,  84  C.  C.  A.  295  (1907). 

Whether  the  marking  by  stones  and 
stakes  is  sufficient  may  depend  upon  the 
condition  of  the  ground  to  be  located.  If 
the  conformation  is  such  that  the  monu- 
ments and  stakes  would  so  mark  the 
boundaries  as  that  they  could  be  readily 
traced,  they  would  be  sufficient;  other- 
wise, not.     Taylor  v.  Middleton,  67   Cal. 


656,   8   Pac.   594,   15   Mor.   Min.   R.   284 
(1885). 

IX.      Stakes,   etc.,    Placed   Off  Claim. 

The  mere  fact  that  some  of  the  stakes 
are  placed  upon  a  location  already  made 
will  not  render  the  location  valid.  Del 
Monte  Min.  &  Mill.  Co.  v.  Last  Chance 
Min.  &  Mill.  Co.,  171  U.  S.  55,  18  Sup. 
Ct.  895,  43  L.  Ed.  72,  19  Mor.  Min.  R. 
370   (1898). 

The  fact  that  one  stake  is  placed  upon 
another  claim  and  that  a  portion  of  the 
latter  claim  is  included  within  the  boun- 
daries of  the  former,  as  marked  upon  the 
ground,  does  not  invalidate  the  location. 
Perigo  v.  Erwin,  85  Fed.  904,  19  Mor. 
Min.  R  269  (1898),  affirmed  93  Fed. 
608,  35  C.  C.  A.  482   (1899). 

Where,  by  mistake,  certain  of  the 
monuments  are  placed  upon  an  adjoining 
claim,  the  whole  location  will  not  be  in- 
validated, but  will  be  held  good  as  to  the 
part  subject  to  location.  Doe  v.  Tyler, 
73  Cal.  21,  14  Pac.  375   (1887). 

Where  the  end  stakes  are  beyond  the 
limits  of  the  claim  as  given  in  the  loca- 
tion notice,  the  space  between  the  stakes 
and  the  end  of  the  claim  as  so  given  is 


632 


Watee  and  Mineral  Cases. 


[Idaho 


Counsel  for  appellant  contends  that  a  locator  may  cover  or  include 
within  his  location  an  excessive  area  of  ground  and  hold  it  against  the 
world  until  he  gets  ready  to  conform  it  to  the  area  allowed  by  the 
mining  laws  or  until  he  has  the  same  surveyed  for  a  patent.  We  recog- 
nize the  rule  that  where  a  claim  is  excessive  in  area  the  location  is  not 
void  unless  the  excess  is  so  great  as  to  impress  the  locator  with  a  fraudu- 
lent intent.  The  intent  of  the  law  is  to  require  the  locator  to  make  his 
location  so  definite  and  certain  that  from  the  location  notice  and  the 
stakes  and  monuments  on  the  ground  the  limits  and  boundaries  of  the 
claim  may  be  readily  ascertained,  and  so  definite  and  certain  as  to  prevent 
the  changing  or  floating  of  the  claim.  This  court  held  in  Burke  v.  Mc- 
Donald, 2  Idaho  (Hasb.)  679,  33  Pac.  49,  that  where  the  boundary  of  a 
claim  is  made  excessive  in  size  with  fraudulent  intent,  it  is  void;  or  if  so 
large  as  to  preclude  innocent  error,  fraud  will  be  presumed.  Stemwinder 
Min.  Co.  v.  Emma  &  L.  C.  Con.  Co.,  2  Idaho  (Hasb.)  456,  21  Pac. 
1040. 


open  to  location  by  a  third  party.  Flynn 
Group  Min.  Co.  v.  Murphy,  principal 
case. 

All  the  statute  requires  is  that  the 
land  should  be  so  marked  upon  the 
ground  that  the  boundaries  can  be  read- 
ily traced.  This  does  not  mean  that  the 
marks  shall  be  upon  the  actual  ground 
included  within  the  mining  claim,  but 
they  may  be  upon  any  ground  adjoining 
near  enough  to  readily  designate  the 
boundaries.  It  was  certainly  never  in- 
tended that  a  slight  mistake  in  the  set- 
ting of  stakes  should  invalidate  a  loca- 
tion. All  that  was  intended  is  that  a 
person  seeking  to  make  a  subsequent  lo- 
cation could  go  upon  the  ground  referred 
to  and  from  the  marks  made  find  the 
boundaries  of  the  claim.  West  Granite 
Mt.  Min.  Co.  v.  Granite  Mt.  Min.  Co.,  7 
Mont.  356,  17  Pac.  547   (1888). 

X.      Monuments  Control  Courses  and 
Distances. 

Monuments  are  to  be  followed  in  pref- 
erence to  courses  and  distances  when  the 
latter  do  not  agree  with  the  former.  Mc- 
Evoy  v.  Hyman,  25  Fed.  596,  15  Mor. 
Min.  R.  397   (1885). 

The  Statute  of  Colorado  provides  that 
surface  boundaries   shall   be  marked  by 


six  substantial  posts  hewed  or  marked 
on  the  side  or  sides  which  are  in  toward 
the  claim  and  sunk  in  the  ground,  to- 
wit,  one  at  each  corner  and  one  at  the 
center  of  each  side  line.  Such  statutory 
monuments,  substantially  complying 
with  the  requirements  of  the  law,  would 
control  courses  and  distances  so  that 
where  there  was  a  variation  between  the 
courses  and  distances  given  in  the  cer- 
tificate of  location  and  the  monuments 
on  the  ground,  the  latter  would  prevail. 
Pollard  v.  Shively,  5  Colo.  309  (1880). 

The  rule  of  law  is  that  monuments 
will  control  courses  and  distances,  and 
while  judges  in  commenting  upon  the 
facts  of  particular  cases  speak  of  the 
monuments  as  being  unquestionable,  the 
rule  is  not  so  qualified.  Cullacott  v. 
Cash  Gold  &  S.  Min.  Co.,  8  Colo.  179,  6 
Pac.  211,  15  Mor.  Min.  P.  392  (1884). 

Monuments  erected  on  the  ground  con- 
trol the  courses  and  distances  given  in 
location  notices.  Gibson  v.  Hjul  (Nev.), 
108  Pac.  759    (1910). 

XI.      Exactness    of    Survey    Not    Re- 
quired. 

It  is  neither  expected  nor  required 
that  the  locator  of  a  mining  claim  in 
marking    his    claim    on    the    ground    so 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


633 


Among  other  things,  it  is  provided  in  section  3207  of  the  Revised 
Codes  of   1909,  as  follows:     "The  locator  at  the  time  of  making  the 
discovery  of  such  vein  or  lode,  must  erect  a  monument  at  such  place 
of  discovery,  upon  which  he  must  place  his  name,  the  name  of   the 
claim,  the  date  of  discovery  and  distance  claimed  along  the  vein  each  way 
from' such  monument.    Within  ten  days  from  the  date  of  discovery,  he 
must  mark  the  boundaries  of  his  claim  by  establishing  at  each  corner 
thereof  and  at  any  angle  in  the  side  lines,  a  monument,  marked  with  the 
name  of  the  claim  and  the  corner  or  angle  it  represents,  also,  at  the 
time  of  so  marking  his  boundaries,  he  must  post  at  his  discovery  mon- 
ument his  notice  of  location  in  which  must  be  stated:     First,  the  name 
of  the  locator ;  second,  the  name  of  the  claim ;  third,  the  date  of  discovery ; 
fourth   the  direction  and  distance  claimed  along  the  ledge  from  the  dis- 
covery; fifth,  the  distance  claimed  on  each  side  of  the  middle  of  the 
ledge;  sixth,  the  distance  and  direction  from  the  discovery  monument 
to  such  natural  object  or  permanent  monument,  if  any  such  there  be, 
as  will  fix  and  describe  in  the  notice  itself  the  location  of  the  claim; 
and  seventh,  the  name  of  the  mining  district,  county  and  state." 


that  its  boundaries  can  be  readily  traced 
shall  be  exact  in  running  the  lines  or  in 
fixing  the  corner  or  other  posts.  It  is 
rarely,  if  ever,  that  he  has  either  the 
time  or  the  facilities  for  making  an 
accurate  survey,  and  a  difference  of  three 
or  four  feet  or  a  few  points  between  the 
monuments  fixed  by  an  actual  survey  for 
a  patent  and  those  fixed  at  the  time  of 
location  is  immaterial,  and  does  not  af- 
fect the  validity  of  the  original  location. 
Eilers  v.  Boatman,  3  Utah  159,  2  Pac.  66, 
15  Mor.  Min.  R.  462  (1883),  affirmed  111 
U.  S.  356,  4  Sup.  Ct.  432,  28  L.  Ed.  454 
(1884). 

It  is  sufficient  to  give  a  right  to  the 
occupants  of  mining  ground  on  the  gov- 
ernment domain,  which  the  courts  will 
protect,  to  establish  by  evidence  its  appro- 
priation by  means  which  are  a  substan- 
tial compliance  with  the  law  upon  that 
subject  and  which  in  view  of  the  sur- 
rounding circumstances  will  give  notice 
to  those  who  have  a  right  to  know  that 
the  particular  mining  ground  is  subject 
to  the  dominion  and  control  of  some  pri- 
vate claimant.  Eilers  v.  Boatman,  3 
Utah  159,  2  Pac.  66,  15  Mor  Min.  K,.  462 


(1883),  affirmed  111  U.  S.  356,  4  Sup. 
Ct.  432,  28  L.  Ed.  454   (1884). 

XII.  Changing  Lines. 
The  locator  is  bound  by  the  placing  of 
stakes,  and  cannot  thereafter  change  the 
description  from  that  fixed  by  the  stakes, 
to  the  prejudice  of  intervening  rights. 
Whitlesee  v.  King  of  Arizona  Min.  & 
Mill.  Co.,  7  Ariz.  95,  60  Pac.  866  (1900). 
After  the  boundaries  have  been  marked 
on  the  ground  the  lines  cannot  be 
changed  so  as  to  include  other  ground 
located  by  a  third  party.  Golden  Fleece 
G.  &  S.  Min.  Co.  v.  Cable  Consol.  G.  &  S. 
Min.  Co.,  12  Nev.  312   (1877). 

The  law  requires  the  locator  to  make 
his  location  so  definite  and  certain  that 
from  the  location  notice  and  stakes  and 
monuments  on  the  ground  the  limits  and 
boundaries  of  the  claim  may  be  ascer- 
tained, and  so  definite  and  certain  as  to 
prevent  the  changing  or  floating  of  such 
claim.  Flynn  Group  Min.  Co.  v.  Mur- 
phy, principal  case. 

XIII.      Adopting    Old    Stakes. 
Where   old   stakes   are   standing   upon 
the  ground,  they  may  be  adopted  by  the 


634 


Water  and  Mineral  Cases. 


[Idaho 


The  provisions  of  said  section  require  a  monument  of  some  kind  to 
be  erected  at  the  point  of  discovery,  which  point  is  supposed  to  be  on 
the  ledge,  and  require  the  locator  to  place  on  such  monument  "the  dis- 
tance claimed  along  the  vein  each  way  from  said  monument,"  and  also 
require  the  location  notice  to  state  the  direction  and  distance  claimed 
along  the  ledge  from  the  discovery.  In  the  location  notice  of  said  Snow- 
drift lode,  it  is  stated  that  said  claim  extends  in  a  northwesterly  direction 
along  the  lode  seven  hundred  feet,  and  in  a  southeasterly  direction  along 
the  lode,  eight  hundred  feet.  That  notice  fixes  the  distance  along  the 
lode  that  said  claim  extends  from  the  point  of  discovery.  The  ground 
beyond  the  eight  hundred  feet  southeasterly  from  the  discovery  was  not 
included  in  said  claim,  even  though  the  stakes  marking  the  northeasterly 
and  southeasterly  corners  of  said  claim  were  placed  beyond  the  eight 
hundred  feet.  Any  locator  had  a  right  to  go  to  the  point  of  discovery 
of  the  Snowdrift  claim  and  measure  the  ground  from  the  discovery  point 
eight  hundred  feet  in  a  southeasterly  direction  along  the  lode,  and  if 
there  was  any  unlocated  ground  beyond  the  eight  hundred  feet,  locate 


locator  if  they  are  in  the  proper  position. 
Conway  v.  Hart,  129  Cal.  480,  62  Pac. 
44,  21  Mor.  Min.  R.  20  (1900). 

XIV.      Sufficiency    of    Marking    Ques- 
tion  of    Fact. 

The  question  as  to  whether  or  not  the 
boundaries  of  a  mining  claim  are  suffi- 
ciently marked  upon  the  surface  by  ref- 
erence to  natural  and  permanent  monu- 
ments is  one  of  fact,  and  the  appellate 
court  will  be  bound  by  the  finding  of  the 
trial  court  thereon.  Eilers  v.  Boatman, 
111  TJ.  S.  356,  4  Sup.  Ct.  432,  28  L.  Ed. 
454,  15  Mor.  Min.  R.  471    (1884). 

Whether  any  marking  has  been  made, 
and  if  so  whether  it  is  sufficient  to  indi- 
cate the  boundaries  of  the  claim,  are 
questions  of  fact.  Meydenbauer  v. 
Stevens,  78  Fed.  787,  18  Mor.  Min.  R. 
578   (1897). 

Whether  the  location  has  been  so 
marked  that  its  boundaries  can  be  read- 
ily traced  is  a  question  of  fact.  Charl- 
ton v.  Kelly,  156  Fed.  433,  84  C.  C.  A. 
295   (1907). 

Whether  a  mining  location  is  so  mark- 
ed that  its  boundaries  may  be  readily 
traced  is  a  question  of  fact  for  the  jury. 


Charlton  v.  Kelly,  2  Alaska  532  (1905- 
1906). 

Whether  the  boundaries  can  be  readily 
traced  from  the  stakes  or  other  articles 
placed  upon  the  ground  is  a  question 
of  fact.  Du  Prat  v.  James,  65  Cal.  555, 
14  Pac.  375    (1884). 

Whether  the  boundaries  of  a  claim 
have  been  sufficiently  marked  is  a  ques- 
tion of  fact  for  the  jury.  Taylor  v.  Mid- 
dleton,  67  Cal.  656,  8  Pac.  594,  15  Mor. 
Min.  R.  284   (1885). 

The  ultimate  fact  in  determining  the 
validity  of  a  location  is  the  placing  of 
such  marks  on  the  ground  as  to  identify 
the  claim,  or,  to  use  the  language  of  the 
statute,  "of  such  a  character  that  the 
boundaries  can  be  readily  traced,"  and  it 
is  for  the  jury,  or  the  court  sitting  as  a 
jury,  to  determine  whether  this  has  been 
effected.  Eaton  v.  Norris,  131  Cal.  561, 
63  Pac.  856,  21  Mor.  Min.  R.  205  (1901). 

In  considering  the  question  whether 
the  boundaries  have  been  fully  marked, 
the  jury  are  not  confined  to  the  monu- 
ments placed  at  the  corners  of  the  claim 
at  the  inception  of  the  location  for  the 
purpose  of  locating  it,  but  may  consider 
also     all     other    objects    placed   on    the 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


635 


it,  regardless  of  the  fact  that  the  easterly  end  stakes  had  been  established 
beyond  the  eight  hundred  feet. 

In  Nicholls  et  al.  v.  Lewis  &  Clark  Mining  Co.,  18  Idaho  224,  109  Pac 
846,  just  decided  by  this  court,  the  court  had  occasion  to  review  and  disap- 
prove of  certain  language  used  by  Chief  Justice  McBride  in  Atkins  v.  Hen- 
dree,  1  Idaho  95,  to  wit :  "To  claim  more  than  the  law  allows  is  no  fraud 
on  others,  for  they  have  the  same  means  of  ascertaining  the  attempted 
fraud  that  the  other  has  to  commit  it,"  and  held  that  where  an  excessive 
mineral  location  had  been  made  through  mistake,  while  the  locator  was 
acting  in  good  faith,  the  location  will  be  void  only  as  to  the  excess;  but 
where  the  locator  has  purposely  included  within  his  exterior  boundaries 
an  excessive  area  with  fraudulent  intent  to  hold  the  entire  area  under 
one  location,  such  location  is  void.  Or,  if  made  so  large  that  the  loca- 
tion cannot  be  deemed  the  result  of  innocent  error  or  mistake,  fraud 
may  be  presumed.  Chief  Justice  McBride  virtually  holds  in  the  case  of 
Atkins  v.  Hendree,  supra,  that  no  fraud  can  be  perpetrated  where  there 


ground,  either  for  the  purpose  of  serving 
as  monuments  or  otherwise,  for  all  that 
the  statute  requires  is  that  the  claims 
be  marked  distinctly  on  the  ground, 
without  regard  to  the  mode.  Eaton  v. 
Norris,  131  Cal.  561,  63  Pac.  856,  21 
Mor.  Min.  R.  205  (1901). 

Where  monuments,  for  example  stakes, 
stones  or  a  tree,  are  referred  to,  parol 
proof  is  always  admissible  to  show  their 
location.  Cullacott  v.  Cash  Gold  &  S. 
Min.  Co.,  8  Colo.  179,  6  Pac.  211,  15  Mor. 
Min.  R.  392   (1884). 

The  material  substance  out  of  which 
monuments  shall  be  made  is  not  specified 
in  the  law.  Their  existence  and  location 
may  become  questions  of  fact  to  be  de- 
termined like  other  questions  of  fact,  ac- 
cording to  the  rules  of  evidence.  Culla- 
cott v.  Cash  Gold  &  S.  Min.  Co.,  8  Colo. 
179,  6  Pac.  211,  15  Mor.  Min.  R.  392 
(1884). 

What  is  a  natural  object  or  permanent 
monument  sufficient  to  identify  a  claim 
is  subject  to  proof  and  is  a  question  of 
fact.  Russell  v.  Chunasero,  4  Mont.  309, 
1  Pac.  713    (1882). 

The  question  whether  a  reference  made 
is  to  some  natural  object  or  permanent 
monument,   is  one  of  fact  for  the  jury. 


Flavin  v.  Mattingly,  8  Mont.  242,  19  Pac. 
384  (1888)  ;  O'Donnell  v.  Glenn,  8  Mont. 
248,  19  Pac.  302  (1888);  Gamer  v. 
Glenn,  8  Mont.  371,  20  Pac.  654   (1889). 

It  is  not  for  the  court  to  say  whether 
or  not  a  certain  survey  corner  is  a  per- 
manent monument.  That  is  a  matter  for 
proof.  Metcalf  v.  Prescott,  10  Mont. 
283,  25  Pac.  1037,  16  Mor.  Min.  R.  137 
(1891). 

The  question  as  to  whether  a  reference 
to  a  natural  object  or  permanent  monu- 
ment is  sufficient  to  identify  the  boun- 
daries of  the  claim,  is  one  of  fact.  Brady 
v.  Husby,  21  Nev.  453,  33  Pac.  801 
(1893). 

Sufficiency  of  reference  to  natural  ob- 
jects or  permanent  monuments  is  a  ques- 
tion of  fact  for  the  jury.  Bonanza 
Consol.  Min.  Co.  v.  Golden  Head  Min. 
Co.,  24  Utah  159,  80  Pac.  736  (1905). 

Whether  or  not  a  claim  is  sufficiently 
marked  upon  the  ground  is  subject  to 
proof,  and  is  a  question  of  fact  for  the 
jury.  Farmington  Gold  Min.  Co.  v. 
Rhymney  Gold  &  C.  Co.,  20  Utah  363, 
58  Pac.  832,  77  Am.  St.*  Rep.  913  (1899). 

The  statute  respecting  the  location  of 
mining  claims  should  be  construed  with 
liberality,  and  the  sufficiency  of  the  loca- 


636 


Watek  and  Mineral  Cases. 


[Idaho 


exists  the  same  means  of  ascertaining  or  discovering  the  fraud  that  the 
other  parties  had  to  commit  it.  We  cannot  assent  to  that  doctrine,  for, 
as  we  view  it,  a  fraudulent  act  still  remains  fraudulent  even  though 
there  exists  very  plain  and  simple  means  of  ascertaining  or  discovering 
the  fraud.  Where  a  claim  is  located  in  good  faith  and  contains  some 
excess  of  ground,  the  location  is  valid  except  as  to  the  excess,  and 
others  who  may  desire  to  make  a  location  may  measure  the  ground  and 
confine  the  first  locator  to  the  limits  prescribed  by  law.  This  court 
therefore  holds  that  a  subsequent  locator  may  measure  the  ground  of  a 
prior  location  from  the  discovery  and  ascertain  the  extent  of  such 
location,  and  if  it  contains  more  ground  within  its  boundaries  than  is 
described  in  the  location  notice,  and  more  land  than  can  be  located 
under  one  location,  the  subsequent  locator  may  locate  the  excess  and 
maintain  his  right  thereto.  This  rule  applies  to  locations  not  fraudulent 
on  account  of  containing  an  unreasonable  excess  of  ground,  and  it  has  no 
application  to  fraudulent  locations  such  as  in  the  case  of  Nicholls  v. 


tion  with  reference  to  natural  objects  or 
permanent  monuments  is  simply  a  ques- 
tion of  fact.  Farmington  Gold  Min.  Co. 
v.  Rhymney  Gold  &  C.  Co.,  20  Utah  363, 
58  Pac.  832,  77  Am.  St.  Rep.  913  (1899). 

XV.      Mere   Staking    of    No    Effect. 

Although  a  locator  finds  a  location  dis- 
tinctly marked  on  the  ground,  it  does  not 
necessarily  follow  therefrom  that  the  lo- 
cation is  still  valid  and  subsisting.  On 
the  contrary,  the  ground  may  be  entirely 
free  for  him  to  make  a  location  upon  it. 
Del  Monte  Min.  &  Mill.  Co.  v.  Last 
Chance  Min.  &  Mill.  Co.,  171  U.  S.  55, 
18  Sup.  Ct.  895,  43  L.  Ed.  72,  19  Mor. 
Min.  R.  370  (1898). 

The  mere  fact  that  the  country  is 
rough  and  mountainous  does  not  relieve 
the  locator  from  the  duty  of  placing 
monuments,  so  that  the  boundaries  may 
be  readily  traced.  Gird  v.  California  Oil 
Co.,  60  Fed.  531,  18  Mor.  Min.  R.  45 
(1894). 

The  mere  staTdng  of  the  boundaries  of 
a  claim  is  not  a  location.  It  is  not  true 
that  mining  ground  cannot  be  located  if 
some  other  claimant  has  put  stakes 
around  it.  The  first  claimant  may  not 
be  a  citizen  or  otherwise  capable  of  hold- 


ing against  a  qualified  locator,  and  he  may 
not  have  complied  with  other  require- 
ments of  the  law  which  are  just  as  es- 
sential as  the  marking  of  the  boundaries. 
Golden  Fleece  Gold  &  S.  Min.  Co.  v. 
Cable  Consol.  Gold  &  S.  Min.  Co.,  12 
Nev.  312.  1  Mor.  Min.  R.  120   (1877). 


XVI. 


State  Statutes  and   Local 
Rules. 


Local  mining  rules  requiring  the  post- 
ing of  a  notice  describing  the  claims, 
etc.,  do  not  dispense  with  the  necessity 
for  distinctly  marking  the  boundaries 
upon  the  ground,  as  required  by  the  gen- 
eral law.  Gird  v.  California  Oil  Co.,  60 
Fed.  531,  18  Mor.  Min.  R.  45   (1894). 

The  location  mining  rules  and  regula- 
tions of  a  district  required  among  other 
things  that  in  locating  a  claim,  stakes 
should  be  put  at  each  of  its  corners,  and 
also  that  it  should  be  bounded  by  a  small 
ditch.  Locations  within  the  district 
must  be  marked  as  required  by  this  regu- 
lation or  they  will  be  held  void.  Myers  v. 
Spooner,  55  Cal.  257   (1880). 

A  recorded  notice  gives  no  information 
of  a  claim  not  actually  located,  nor  does 
even  a  notice  posted  on  the  ground,  un- 
less it  appears  that  the  party  posting  it 


1910] 


Flynn  Gkoup  Mining  Co.  v.  Mukphy. 


637 


Lewis  &  Clark  Mining  Co.,  for  if  the  location  is  absolutely  void,  the 
ground  included  therein  has  not  been  segregated  thereby  from  the 
public  domain.  There  is  no  contention  made  in  the  case  at  bar  that  the 
excess  in  the  Snowdrift  location,  if  there  was  any,  was  the  result  of 
fraudulent  intent,  but  we  think  it  is  conceded  that  such  excess,  if  there 
was  any,  was  the  result  of  innocent  error. 

It  is  contended  that  the  location  notice  of  the  Murphy  fraction  is  so 
defective  as  to  impart  no  notice  whatever.  It  must  be  admitted  that  it 
does  not  describe  the  exterior  boundaries  of  said  mining  claim.  It  does, 
however,  contain  the  seven  requisites  of  a  location  notice  as  provided  by 
said  section  3207,  Rev.  Codes.  It  contains  (1)  the  name  of  the  locator; 
(2)  the  name  of  the  claim;  (3)  the  date  of  the  discovery;  (4)  the 
distance  along  the  ledge  from  the  discovery;  (5)  the  distance  claimeu 
on  each  side  of  the  ledge;  (6)  such  a  description  as  will  fix  and  describe 
the  location  of  the  claim;  (7)  the  name  of  the  mining  district,  county, 
and  state      The  locator  attempted  to  describe  the  exterior  boundaries 


is  proceeding  to  indicate  with  reasonable 
diligence  or  is  about  to  indicate  the 
boundaries,  by  marking  them ;  and  where 
the  local  regulations  require  that  the 
boundaries  be  marked  on  the  ground  and 
notice  of  location  posted  before  it  is  re- 
corded, the  priority  of  different  locations 
will  be  determined  by  the  priority  of 
marking  and  posting  the  notices. 
Gregory  v.  Pershbaker,  73  Cal.  109,  14 
Pac.  401   (1887). 

The  phrase  "staking  off,"  occurring  in 
local  mining  regulations,  refers  to  mark- 
ing the  boundaries  of  claims  by  stakes 
or  trees,  posting  of  stakes  along  the  vein 
or  its  crossings,  so  as  to  indicate  to  other 
prospectors  the  ground  intended  to  be 
appropriated.  Becker  v.  Pugh,  9  Colo. 
589,  3  Pac.  906,  15  Mor.  Min.  R,  304 
(1886). 

A  state  cannot  dispense  with  the  per- 
formance of  the  conditions  imposed  by 
the  federal  law  nor  relieve  the  locator 
from  the  obligation  of  performing  the 
acts  declared  by  it  essential  to  the  loca- 
tion, but  it  may  add  reasonable  addi- 
tional conditions.  Sisson  v.  Sommers,  24 
Nev.  378,  55  Pac.  829,  77  Am.  St.  Rep. 
815,  19  Mor.  Min.  E.  644   (1899). 

Statute  of  New  Mexico  provides  that 


"the  surface  boundaries  of  all  mining 
claims,  wherever  located,  shall  be  marked 
by  four  substantial  posts  or  four  substan- 
tial monuments  of  stone,  set  at  each  cor- 
ner of  such  claim;  such  posts  or  monu- 
ments of  stone  shall  be  each  plainly 
marked  so  as  to  indicate  the  direction  of 
such  claim  from  each  monument  of  stone 
or  posts."  This  is  a  positive  require- 
ment and  cannot  be  disregarded  any 
more  than  any  other  requirement  of  the 
law.  Deeney  v.  Mineral  Creek  Mill.  Co., 
11  N.  M.  279,  67  Pac.  724,  22  Mor.  Min. 
R.  47  (1872). 

Where   a   state   statute    requires    the 
marking  upon  the  ground  should  be  made 
within  thirty  days  after  discovery,  and 
the  marking  is  not  made  until  after  that 
time  has  expired,  the  discoverer  has  no 
rights  as  against  one  who  has  in  the  in- 
terval peaceably  entered  and  located  the 
ground.     Copper  Grove  Min.  Co.  v.  All- 
man,  23  Utah  410,  64  Pac.  1019,  21  Mor. 
Min.  R.  296   (1901). 
XVII.      No  Presumption  of   Marking. 
There    is     no     presumption     that     old 
claims    which    have   been    worked   for    a 
long  period  of  time,  and  upon  which  no 
monuments  marking  the  boundaries   are 
found,  were  properly  marked  upon  the 


638 


"Watee  and  Mineral  Cases. 


[Idaho 


of  the  claim  and  utterly  failed  to  do  so.  The  law,  however,  does  not  re- 
quire the  notice  to  describe  the  exterior  boundaries  of  the  claim.  It  is 
recited  in  the  notice  that  the  adjoining  claims  are  the  Snowdrift  on  the 
west  and  the  Buffalo  fraction  and  the  Parret  fraction  on  the  east,  and 
the  evidence  shows  that  those  claims  were  well-known  claims  at  the 
time  of  the  location  of  the  Murphy  fraction. 

This  court  held  in  Morrison  v.  Regan,  8  Idaho  291,  67  Pac.  955,  that 
where  it  appears  a  mining  claim  has  been  located  in  good  faith,  if  by  any 
reasonable  construction  the  language  used  in  the  notice  describing  the 
claim  and  in  reference  to  natural  objects  and  permanent  monuments  will 
impart  knowledge  of  the  location  of  the  claim  to  a  subsequent  locator, 
it  is  sufficient.  It  has  frequently  been  held  that  reference  to  well-known 
mining  claims  is  a  sufficient  compliance  with  the  law  (section  2324,  Rev. 
St.  U.  S.  [U.  S.  Comp.  St.  1901,  p.  1426],  and  section  3207,  Rev.  Codes 
1909),  requiring  mining  locations  to  be  tied  to  some  natural  object  or 
permanent  monument  so  as  to  identify  the  claim.     Hammer  v.  Milling 


ground  at  the  time  of  their  location. 
Daggett  v.  Yreka  Min.  Co.,  149  Cal.  357, 
86  Pac.  968    (1906). 

XVIII.      Removal    or    Obliteration    of 
Marks. 

Where  location  is  made  in  accordance 
with  the  statute  and  the  boundaries 
properly  marked,  the  rights  secured 
thereby  cannot  be  devested  by  the 
obliteration  of  the  marks  or  removal  of 
the  stakes  without  fault  of  the  locator. 
Jupiter  Min.  Co.  v.  Bowdie  Consol.  Min. 
Co.,  11  Fed.  666,  7  Sawy.  96,  4  Mor. 
Min.  R.  411   (1881). 

Where  the  acts  of  location  have  been 
performed  in  conformity  with  the  stat- 
ute, and  the  right  of  possession  has 
vested,  it  cannot  be  devested  by  the  re- 
moval or  obliteration  of  the  stakes,  mon- 
uments, marks  or  notices  without  the  act 
or  fault  of  the  locator  during  the  time  he 
continues  to  perform  the  necessary  work 
upon  the  claim  and  to  comply  with  the 
law  in  all  other  essential  respects.  Book 
v.  Justice  Min.  Co.,  58  Fed.  106,  17  Mor. 
Min.  R,  617   (1893). 

Where  the  ground  and  the  entire  terri- 
tory included  within  the  mining  district 
is    extremely    rough    and    mountainous, 


and  the  man  who  erected  monuments  was 
dead  at  the  time  of  the  trial,  and  it  was 
shown  that  the  ground  was  but  a  mass 
of  boulders  and  rocks,  broken  and  other- 
wise, that  the  party  whom  it  was  alleged 
erected  the  monuments  was  seen  engaged 
in  making  the  location  and  engaged  in 
the  work  long  enough  to  have  built  the 
monuments  the  required  height,  and  that 
after  a  period  of  fourteen  years,  during 
which  heavy  storms  occurred,  some  of 
the  monuments  were  found  standing  at 
a  height  of  seven  or  eight  inches,  the 
court  is  justified  in  finding  that  as  orig- 
inally constructed  the  monuments  an- 
swered the  requirements  of  a  local  rule 
requiring  them  to  be  two  feet  in  height. 
Gird  v.  California  Oil  Co.,  60  Fed.  531, 
18  Mor.  Min.  R.  45   (1894). 

Where  a  claim  has  been  properly 
marked,  the  obliteration  of  the  marks  or 
their  removal  without  the  fault  of  the 
locator  does  not  affect  his  rights. 
Tonopah  &  Salt  Lake  Min.  Co.  v. 
Tonopah  Min.  Co.  of  Nevada,  125  Fed. 
408    (1903). 

Where  locations  were  made  some  six 
years  before  the  trial,  and  the  notices  in- 
troduced in  evidence  contained  such 
specific   calls   and    references     to    monu- 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


639 


Co.,  130  U.  S.  291,  9  Sup.  Ct.  548,  32  L.  Ed.  964;  Duncan  v.  Fulton, 
15  Colo.  App.  140,  61  Pac.  244;  Kinney  v.  Fleming,  6  Ariz.  263,  56 
Pac.  723. 

In  Hammer  v.  Milling  Co.,  supra,  the  location  notice  stated  as  fol- 
lows: "This  lode  located  about  1500  feet  south  of  Vaughan's  Little 
Jenny  mine."  The  Supreme  Court  of  Montana  held  that  that  was 
a  sufficient  reference  to  a  natural  object  or  permanent  monument,  and 
the  Supreme  Court  of  the  United  States,  sustaining  that  decision,  said: 
"We  agree  with  the  court  below  that  the  Little  Jenny  mine  will  be 
presumed  to  be  a  well-known  object  or  permanent  monument  until  the 
contrary  appears." 

In  Bismark  Mining  Co.  v.  North  Sunbeam  Co.,  14  Idaho  516,  95  Pac. 
14,  this  court  stated  as  follows:  "It  is  the  well-settled  doctrine  of  all 
of  the  later  decisions  that  location  notices  and  records  should  receive 
a  liberal  construction,  to  the  end  of  upholding  a  location  made  in  good 
faith;"  and  quotes   from  the  case  of  Londonderry  M.   Co.  v.  United 


ments  that  a  surveyor  would  have  no 
difficulty  in  locating  the  boundaries  with 
knowledge  of  the  location  of  these  monu- 
ments testified  to  by  witnesses,  although 
with  the  location  notices  in  their  hands 
the  witnesses  would  be  unable  to  find  all 
of  the  particular  monuments  referred  to 
in  the  notices,  and  while  true  that  only 
such  monuments  as  were  then  found  by 
the  witnesses  would  not  be  sufficient  to 
make  a  proper  marking  of  the  bound- 
aries, a  finding  that  the  claim  was  prop- 
erly marked  when,  by  aid  of  the  location 
notices  and  the  monuments  found,  the  re- 
maining boundaries  could  be  ascertained, 
will  be  sustained.  Yreka  Min.  &  Mill. 
Co.  v.  Knight,  133  Cal.  544,  65  Pac.  1091, 
21  Mor.  Min.  R.  478  (1901). 

The  fact  that  monuments  are  not 
found  nine  years  after  the  time  they  were 
placed  is  not  sufficient  to  offset  the  tes- 
timony of  the  engineer  who  set  them. 
Temescal  Oil  Min.  &  Dev.  Co.  v.  Salcido, 
137  Cal.  211,  69  Pac.  1010,  22  Mor.  Min. 
R.  360  (1902). 

XIX.      Placer    Claims — Reference    to 
Governmental  Surveys. 

A  placer  claim  is  sufficiently  marked 
by  placing  a   stake   in  the   corner   of   a 


prior  claim  and  substantial  stakes  at 
each  of  the  other  corners  and  in  the  cen- 
ter of  each  end  line.  Mcintosh  v.  Price, 
121  Fed.  716,  58  C.  C.  A.  136   (1903). 

Section  2331,  United  States  Rev. 
Stats.,  providing  that  where  lands  have 
been  previously  surveyed  by  the  United 
States,  all  placer  claims  located  thereon 
must  conform  to  the  legal  subdivisions, 
does  not  dispense  with  the  necessity  for 
a  marking  of  the  boundaries  of  the  claim 
upon  the  ground,  and  the  mere  posting 
of  a  notice,  claiming  a  certain  subdi- 
vision as  a  placer  claim,  without  any 
marking  upon  the  surface,  confers  no 
rights  to  the  land.  Worthem  v.  Sideway, 
72  Ark.  215,  79  S.  W.  777    (1904). 

Where  the  boundaries  of  the  claim  are 
correctly  given  in  the  location  notice,  but 
the  land  was  stated  to  be  in  the  wrong 
governmental  subdivision,  it  was  held 
sufficient,  as  the  boundaries  could  be 
readily  ascertained.  The  reference  to  the 
survey  was  rejected,  sufficient  remaining 
to  identify  the  land  in  accordance  with 
the  maxim  Falsa  descriptio  non  nocet 
cum  de  corpore  constat.  Duryea  v. 
Boucher,  67  Cal.  141,  7  Pac.  421   (1885). 

In  the  location  of  a  placer  claim,  the 
mere  reference  to  the  legal  subdivision  is 


G40 


Water  and  Mineral  Cases. 


[Idaho 


G.  M.  Co.,  38  Colo.  480,  88  Pac.  455,  as  follows:  "Every  case  where 
this  question  is  raised  must  therefore  depend  upon  its  own  circumstances. 
As  previously  stated,  the  purpose  of  such  location  certificate  is  to  give 
notice  to  subsequent  locators;  and,  if  by  reasonable  construction  the 
language  descriptive  of  the  situs  of  a  claim,  aided  or  unaided  by  testi- 
mony, aliunde,  will  do  so,  it  is  sufficient  in  this  respect.  In  other  words, 
the  object  of  requiring  a  reference  to  a  natural  object  or  permanent  mon- 
ument is  to  furnish  means  by  which  to  identify  the  claim,  and  whatever 
reference  will  accomplish  this  object  satisfies  the  law." 

It  appears  from  the  evidence  that  said  Murphy  fraction  was  staked 
and  with  the  exception  of  one  stake  they  remained  standing  up  to  the 
time  the  survey  was  made  for  patent.  It  seems  that  one  of  the  stakes 
had  fallen  down  and  was  not  up  during  the  year  prior  to  its  survey  for 
a  patent.  After  reciting  certain  facts  in  Bismark  Mining  Co.  v.  North 
Sunbeam  Co.,  supra,  this  court  said:  "Those  facts  appearing  every  rea- 
sonable presumption  that  can  be  drawn  therefrom  should  be  in  favor  of 


not  sufficient,  but  the  lines  must  be 
definitely  marked  upon  the  ground.  Sec- 
tion 2329  of  the  Revised  Statutes,  pro- 
viding that  where  lands  have  been  pre- 
viously surveyed  by  the  United  States, 
the  entry  in  its  exterior  limits  shall  con- 
form to  the  legal  subdivisions  of  the  pub- 
lic lands,  simply  provides  where  the 
claimant  shall  run  the  lines  of  his  claim, 
and  does  not  dispense  with  the  require- 
ment that  the  lines  shall  be  marked  or 
evidenced,  and  section  2331,  providing 
that  where  placer  claims  are  upon  sur- 
veyed land  and  conform  to  legal  subdi- 
visions, no  further  survey  or  plan  shall 
be  required,  does  not  refer  to  the  mark- 
ing of  the  boundaries  upon  the  ground, 
but  to  the  plan  or  survey  which  is  to  be 
filed  upon  the  application  for  a  patent. 
White  v.  Lee,  78  Cal.  593,  21  Pac.  363, 
12  Am.  St.  Rep.  115   (1889). 

The  marking  of  the  boundaries  upon 
the  ground  is  essential  to  the  location  of 
a  placer  claim,  although  the  location  be 
of  a  governmental  subdivision.  Anthony 
v.  Jillson,  83  Cal.  296,  23  Pac.  419,  16 
Mor.  Min.  R.  26   (1890). 

Where  a  placer  claim  consisting  of  a 
governmental  subdivision  was  surveyed 
by  a  surveyor  who  found  a  quarter  section 


corner  located  and  monumented  with  a 
pile  of  rocks  by  the  government  surveyor, 
from  which  he  ran  the  lines,  placing 
stakes  two  or  three  inches  in  diameter 
and  standing  a  foot  above  the  ground  at 
each  corner  of  the  claim,  it  was  held  the 
claim  was  sufficiently  marked.  Temescal 
Oil  Min.  &  Dev.  Co.  v.  Salcido,  137  Cal. 
211,  69  Pac.  1010,  22  Mor.  Min.  R.  360 
(1902). 

Where  in  the  location  of  a  quarter  sec- 
tion as  a  placer  claim,  the  stakes  are  set 
so  as  to  leave  a  strip  on  one  side,  but 
the  notice  claimed  the  full  quarter  sec- 
tion, it  was  held  that  the  location  in- 
cluded the  full  quarter  section,  and  that 
the  strip  omitted  by  the  staking  was  not 
open  to  location.  Kern  Oil  Co.  v.  Craw- 
ford, 143  Cal.  298,  76  Pac.  1111,  3  L.  R. 
A.   (N.  S.)   993   (1904). 

The  requirement  that  the  location  be 
distinctly  marked  on  the  ground,  so  that 
the  boundaries  may  be  readily  traced,  ap- 
plies to  placer  as  well  as  to  lode  claims. 
Sweet  v.  Weber,  7  Colo.  443,  4  Pac.  752 
(1884). 

The  requirement  for  distinctly  mark- 
ing the  boundaries  of  the  claim  upon  the 
ground  applies  to  placer  as  well  as  to 
lode    claims,    and    the    provision   of    the 


1910] 


Flynn  Group  Mining  Co.  v.  Muephy. 


641 


his  knowing  of  said  locations ;  and  his  grantees  should  not  be  permitted 
to  take  advantage  of  any  minor  defects  in  the  location  notices  of  said 
mining  claims.  If  Oster  had  actual  notice  of  the  location  and  boundaries 
of  said  claims,  neither  he  nor  his  grantees  will  be  permitted  to  take 
advantage  of  some  technical  defect  in  the  location  notice,  where  it  appears 
that  said  claims  were  located  in  good  faith." 

We  think  the  notice  in  this  case  is  sufficient  under  the  facts  of  the 
case,  as  it  clearly  appears  that  Whelan,  who  located  the  Erin  fraction 
claim  for  appellant,  had  full  knowledge  of  the  location  of  the  Murphy 
fraction  claim  and  one  of  the  principal  reasons  that  he  gives  for  locating 
it  is  that  on  an  examination  of  the  location  notice  he  concluded  it  was 
defective.  Whelan  had  actual  notice  that  the  ground  had  been  located, 
also  constructive  notice  by  an  examination  of  the  recorded  notice,  and 
had  seen  the  work  done  by  Murphy  on  the  claim  for  six  or  seven  years. 
It  is  true  that  Whelan  also  claimed  that  the  ground  was  not  subject 
to  location  at  the  time  Murphy  located  it  as  the  Murphy  fraction,  for 


Revised  Statutes  that  where  the  location 
refers  to  legal  subdivisions  no  further 
plat  or  survey  need  be  had,  refers  only 
to  an  application  for  a  patent,  and  not 
to  the  original  location  of  the  claim. 
Saxton  v.  Perry,  47  Colo.  263,  107  Pac. 
281    (1910). 

Where  a  placer  location  is  made  upon 
a  surveyed  governmental  subdivision,  no 
marking  upon  the  ground  is  necessary. 
Kern  Oil  Co.  v.  Crawford,  143  Cal.  298, 
76  Pac.  1111,  3  L.  R.  A.  (N.  S.)  993 
(1904). 

The  case  of  Kern  Oil  Co.  v.  Crawford, 
143  Cal.  298,  76  Pac.  1111,  3  L.  R.  A. 
(N.  S.)  993  (1904),  is  the  only  case 
holding  that  no  marking  of  the  location 
on  the  ground  is  required  where  a  placer 
claim  is  located  on  a  surveyed  govern- 
mental subdivision,  and  is  contrary  to 
two  former  decisions  of  the  same  court. 
White  v.  Lee,  78  Cal.  115  (1889),  and 
Anthony  v.  Jillson,  83  Cal.  296,  23  Pac. 
419,  16  Mor.  Min.  R.  26  (1890),  and  to 
all  the  other  cases  cited  in  this  note. 
The  reasoning  of  the  decision  seems  to 
be  based  upon  the  fact  that  section  2329, 
United  States  Rev.  Stats.,  provides  that 
where  placer  claims  are  located  on  lands 
which  "have  been  previously  surveyed  by 
W.  &  M.— 41 


the  United  States,  the  entry  in  its  ex- 
terior limits  shall  conform  to  the  legal 
subdivisions  of  public  lands,"  and  that 
section  2331  provides,  "where  placer 
claims  are  upon  surveyed  lands  and  eon- 
form  to  legal  subdivisions  no  further  sur- 
vey or  plat  shall  be  required,"  etc;  but 
these  sections  have,  by  every  other  de- 
cision in  which  they  have  been  construed, 
been  held  not  to  dispense  with  the  neces- 
sity of  marking  the  location  on  the 
ground.  Furthermore,  the  decision  on 
this  point  may  properly  be  considered 
obiter,  for  the  reason  that  it  appears 
from  the  decision  itself  that  it  was  not 
necessary  to  consider  this  point  in  de- 
ciding the  case,  the  other  point  pre- 
viously decided  fully  disposing  of  the 
case.  The  ground  had  been  marked,  but 
the  stakes  were  so  set  that  on  one  side 
they  did  not  include  the  whole  quarter 
section,  leaving  a  strip  on  that  side 
tapering  from  24  to  73  feet  wide.  In  the 
department  decision  it  was  held  that  this 
marking,  taken  in  connection  with  the  lo- 
cation notice,  was  a  sufficient  marking 
of  the  location  on  the  ground.  On  the 
rehearing  the  court  adopted  the  reason- 
ing and  finding  of  the  department  de- 
cision, and  added  the  obiter  point. 


642 


Water  and  Mineral  Cases. 


[Idaho 


the  reason  that  the  ground  was  covered  by  other  locations,  but  the 
trial  court  found  against  this  contention.  Whelan  testified  that  after 
examining  the  notice,  he  concluded  it  was  not  sufficient. 

The  court  found  that  the  respondent  had  performed  the  assessment 
work  on  the  Murphy  fraction  claim  for  nine  years,  beginning  with  1900 
and  ending  with  1908,  and  that  respondent  had  held,  worked,  and  was 
in  the  possession  of  the  Murphy  fraction  lode  for  more  than  five  years 
from  and  after  August  26,  1899,  the  date  of  its  location,  and  that  during 
said  period  of  time,  and  for  more  than  five  years  after  the  date  of  said 
location,  there  was  no  adverse  claim  made  to  said  premises  or  to  any 
part  thereof,  and  that  such  possession  was  open,  notorious,  exclusive, 
and  continuous  for  more  than  six  years.  We  think  that  finding  is  sup- 
ported by  the  evidence.  Under  the  facts  and  circumstances  of  this  case, 
to  permit  the  appellant  to  recover  on  purely  technical  grounds  would  be 
doing  a  great  injustice  to  the  respondent. 

Counsel  for  appellant  contends  that  the  evidence  is  not  sufficient  to 
support  the   findings  to  the  effect  that  respondent   has  been   in  open, 


XX.      Claims  by  Associations. 

Where  a  mining  claim  is  located  by  an 
association  of  persons,  it  is  not  necessary 
that  the  boundary  of  each  particular  lo- 
cation be  marked  on  the  ground.  Mc- 
Donald v.  Montana  Wood  Co.,  14  Mont. 
88,  35  Pac.  668,  43  Am.  St.  Rep.  616 
(1894). 

XXI.-    Tunnel    Claims. 

Where  discovery  of  a  lode  or  vein  is 
made  in  a  tunnel,  pursuant  to  Rev. 
Stats.,  section  2323,  the  location  must  be 
marked  on  the  surface  the  same  as  in  the 
case  of  any  other  location.  Rico-Aspen 
Consol.  Min.  Co.  v.  Enterprise  Min.  Co., 
53  Fed.  321   (1892). 

Under  the  provisions  of  section  2323, 
United  States  Rev.  Stats.,  one  who  has 
made  a  tunnel  location  and  discovers  a 
lode  therein,  is  not  bound  to  make  a  lo- 
cation upon  the  surface,  but  is  entitled 
to  claim  750  feet  of  the  lode  in  each  di- 
rection from  the  discovery.  Ellet  v. 
Campbell,  18  Colo.  510,  33  Pac.  521 
(1893). 

XXII.     Adjoining  Claims. 

Where  two  adjoining  mining  claims 
were  each  marked  at  the  corners  by  four 


stakes  about  1  1-2  feet  long,  flattened  on 
two  sides  and  driven  into  the  ground, 
two  stakes  being  at  the  ends  of  the  divid- 
ing line  common  to  both  claims  and  in 
the  middle  of  the  dividing  line  was  a 
tree  blazed  on  both  sides,  on  one  of  which 
the  notices  of  location  were  posted,  de- 
scribing the  claims  by  courses  and  dis- 
tances running  from  the  tree  to  a  stake 
and  from  stake  to  stake,  it  was  held 
sufficient  under  section  2324,  United 
States  Rev.  Stats.  Eaton  v.  Norris,  131 
Cal.  561,  63  Pac.  856,  21  Mor.  Min.  R. 
205   (1901). 

Stakes  set  at  the  four  corners  of  each 
of  three  claims,  with  notice  posted  upon 
each  showing  its  boundaries,  is  a  suffi- 
cient marking  of  the  claims  upon  the 
ground.  Holdt  v.  Hazard,  10  Cal.  App. 
440,  102  Pac.  540  (1909). 

XXIII.  Under  Colorado  Statute. 
The  failure  to  plant  stakes,  as  required 
by  the  Colorado  Statute,  will  not  be  ex- 
cused where  the  place  where  they  should 
have  been  planted  was  not  inaccessible, 
but  merely  difficult  of  access,  under  the 
provisions  of  that  statute  making  it 
valid  to  post  the  stakes  at  the  nearest 
practicable  point,  where  the  proper  place 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


643 


notorious,  and  adverse  possession  of  said  claim  for  a  period  of  more  than 
six  years.  On  an  examination  of  the  evidence,  we  are  fully  satisfied 
that  that  finding  is  amply  supported  by  the  evidence. 

The  argument  contained  in  appellant's  brief  is  predicated  upon  four 
propositions:  (i)  That  the  Murphy  fraction  lode  was  located  within 
the  lines  of  the  Snowdrift  lode;  (2)  that  the  notice  of  location  filed 
for  record  was  void;  (3)  that  there  was  no  adverse  possession  of  said 
Murphy  lode;  (4)  that  after  the  abandonment  of  the  easterly  portion 
of  the  Snowdrift  location,  the  Erin  fraction  was  located  so  as  to  cover 
such  abandoned  portion,  and  was  therefore  a  valid  location.  All  of  the 
assignments  of  error  are  practically  included  within  those  contentions, 
and  the  trial  court  found  in  favor  of  respondent  on  each  and  every  one 
of  them  and  such  findings  are  based  on  a  substantial  conflict  -in  the 
evidence. 

Upon  a  careful  review  of  the  whole  record,  we  are  fully  satisfied  that 
the  findings  of  fact  are  supported  by  the  evidence,  and  that  the  judg- 


is  impracticable  or  dangerous  to  life  or 
limb.  Croesus  Min.,  Mill.  &  S.  Co.  v. 
Colorado  Land  &  Min.  Co.,  19  Fed.  78 
(1884). 

Under  the  Colorado  Statute,  the  mark- 
ing must  be  by  means  of  six  substantial 
stakes,  one  set  at  each  corner  of  the 
claim,  and  one  at  the  center  of  each  side 
line  thereof.  These  stakes  must  be  of 
substantial  character,  sunk  in  the 
ground,  hewed  on  two  sides  of  the  corner 
stakes  which  are  in  towards  the  claim 
and  the  side  stakes  hewed  on  the  side 
which  is  in  toward  the  claim.  Cheesman 
v.  Shreeve,  40  Fed.  787,  17  Mor.  Min.  R. 
260   (1889). 

A  claimant  who  has  not  kept  up  his 
boundary  posts  will  not  be  permitted  to 
show  the  courses  and  distances  of  his  re- 
corded location  to  be  erroneous  when  the 
right  of  an  intervening  locator  without 
notice  will  be  prejudiced.  It  is  rea- 
sonable to  say  that  the  statutory  require- 
ments respecting  the  marking  of  the  sur- 
face boundaries  with  posts  are  so  far  im- 
perative as  to  require  that  the  boundaries 
may  be  in  the  language  of  the  statute; 
"readily  traced"  by  them,  and  that  the 
notice  which  the  statute  contemplates, 
and    seeks    by   and   through   them,    may 


not  be  substantially  impaired  by  any 
omission;  but  it  does  not  necessarily  fol- 
low that  the  failure  to  place  the  side 
posts  in  the  center  of  the  side  lines  will 
invalidate  the  location.  Such  an  omis- 
sion might  exist  with  all  the  corner 
posts  properly  placed  and  the  lode  ex- 
posed and  worked  the  entire  length  of 
the  claim.  Pollard  v.  Shively,  5  Colo. 
309    (1880). 

If  a  stump  of  sufficient  size  and  sta- 
bility stands  at  a  point  where  a  statu- 
tory post  should  be  located,  there  is  no 
good  reason  why  it  should  not  be  hewed, 
marked,  and  adopted  as  a  location  post. 
In  such  case,  however,  the  descriptive 
survey  should  give  both  its  real  and  as- 
signed character,  otherwise  it  would  not 
satisfy  the  call  of  a  location  certificate 
for  a  post.  Pollard  v.  Shively,  5  Colo. 
309    (1880). 

The  Statute  of  Colorado  provides  that 
surface  boundary  shall  be  marked  by  six 
substantial  posts  hewed  or  marked  on 
the  side  or  sides  which  are  in  toward 
the  claim,  and  sunk  in  the  ground,  to- 
wit,  one  at  each  corner  and  one  at  the 
center  of  each  side  line.  Where  it  is 
practically  impossible  on  account  of  bed 
rock  to   sink   such   posts,   they   may   be 


644 


Water  and  Mineral  Cases. 


[Idaho 


ment  must  be  affirmed  and  it  is  so  ordered.     Costs  are  awarded  to  the 
respondent. 

STEWART  and  AILSHIE,  JJ.,  concur. 

On   Petition    for   Rehearing. 

SULLIVAN,  C.  J.  A  petition  for  rehearing  has  been  filed  in  this 
matter,  whereby  it  is  contended  that  the  rule  laid  down  in  this  case  is  in 
conflict  with  the  rule  laid  down  in  the  case  of  Nicholls  v.  Lewis  & 
Clark  Min.  Co.,  18  Idaho  224,  109  Pac.  846  (decided  at  this  term). 

After  a  careful  examination  of  both  opinions,  we  are  unable  to  find 
any  conflict  between  the  rules  laid  down  therein.  Counsel  for  appellant 
also  contends  that  the  rule  laid  down  in  subdivisions  4,  7,  and  8  of  the 
syllabus  is  not  the  rule  that  should  obtain  in  this  state,  and  if  it  is  the 
established  rule  it  will  lead  to  many  conflicts  and  disturbances  among 
mineral  claimants,  and  that  it  would  be  unjust  to  require  a  locator  of 
a  mining  claim  when  informed  by  another  mineral  claimant  that  his 
claim  is  excessive,  to  then  and  there  relinqush  the  excess;  that  such  a 
rule  would  be  unfair  to  the  excessive  claimant.     Counsel  thus  contends 


placed  in  a  pile  of  stones;  and  where,  in 
marking  the  surface  boundaries  of  a 
claim  any  one  or  more  of  such  posts 
shall  fall  by  right  upon  ground  where 
the  proper  placing  of  it  is  impracticable 
or  dangerous  to  life  or  limb,  it  shall  be 
legal  and  valid  to  place  any  such  post 
in  the  nearest  practicable  point,  suitably 
marked  to  designate  the  proper  place. 
Under  this  statute  no  stake  or  post  was 
placed  at  one  corner  of  a  location  but 
the  letter  "S"  was  cut  into  the  solid 
rock  at  a  point  27  degrees  northwest 
from  the  corner  itself  and  at  a  certain 
distance  designated  in  the  location  cer- 
tificate. This  was  held  to  be  insufficient 
to  constitute  a  compliance  with  the  stat- 
ute. Taylor  v.  Parentau,  23  Colo.  368, 
48  Pac.  505,  18  Mor.  Min.  R.  534  (1897). 
Under  the  Statute  of  Colorado  requir- 
ing stakes  at  the  corners  of  the  claim, 
the  fact  that  one  corner  falls  upon  a 
railroad  embankment  is  no  excuse  for 
failure  to  place  the  stake,  unless  it 
would  have  been  so  close  to  the  track  as 
to  interfere  with  passing  trains.  Beals 
v.   Cone,  27   Colo.   473,   62   Pac.   948,   83 


Am.   St.   Rep.   92,  20  Mor.   Min.   R.   592 
(1900). 

The  provisions  of  the  Colorado  Law 
requiring  the  marking  of  the  location  by 
stakes  planted  in  the  ground  are  not  in 
conflict  with  the  Federal  Statute,  but  are 
additions  thereto  made  under  the  infer- 
ential grant  of  power  conferred  by  sec- 
tions 2322  and  2324  of  the  United  States 
Rev.  Stat.  Saxton  v.  Perry,  47  Colo. 
263,  107  Pac.  281    (1910). 


XXIV. 


Under  Ontario,  Canada, 
Statute. 


If  the  land  is  not  staked  as  required 
by  the  act,  it  is  abandoned  and  open  for 
staking  by  another  party.  Re  Milne  v. 
Dryman,  Ont.  Min.  Com.  Dec.  455 
(1909)  ;  Re  McDermott  and  Dreany,  Ont. 
Min.  Com.  Dec.  4   (1906). 

Staking  will  not  be  invalidated  by 
putting  wrong  license  number  on  post 
by  mistake.  Re  Haight,  etc.,  Ont.  Min. 
Com.  Dec.  2    (1906). 

Substantial  compliance,  as  nearly  as 
circumstances  will  permit,  with  the  act 
is  sufficient  where  the  surveys  are  uncer- 


1910] 


Flynn  Group  Mining  Co.  v.  Murphy. 


645 


in  effect,  that  it  should  be  left  to  the  discretion  of  the  one  who  claims 
an  excessive  area  of  surface  ground  in  his  mining  claim  when  he  should 
relinquish  the  excess. 

We  cannot  agree  with  that  contention.  Under  the  law,  a  locator 
should  not  be  permitted  to  hold  an  excess  of  ground  with  a  single 
location,  and  when  his  notice  provides  that  his  mining  claim  extends 
a  certain  number  of  feet  in  a  certain  direction  from  the  discovery,  sub- 
sequent locators  may  be  governed  by  the  statement  in  the  notice  and  not 
by  stakes  that  include  within  their  boundary  an  excess  of  surface  ground. 
We  are  not  inclined  to  depart  from  the  rule  laid  down  in  the  opinion 

in  this  case. 

Our  attention  has  been  called  to  the  fact  that  the  Snowdrift  claim 
was  located  under  the  provisions  of  sections  3101  and  3102,  Rev.  St. 
1887,  instead  of  under  the  provisions  of  section  3207,  Rev.  Codes, 
and  under  the  provisions  of  said  section  3101  the  notice  of  location 
was  required  to  be  conspicuously  attached  to  one  of  the  center  end  stakes 
instead  of  being  posted  at  the  place  of  discovery;  but  that  would  make 
no  difference  so  far  as  the  rule  laid  down  in  this  opinion  goes.  It 
was  in  fact,  posted  at  the  discovery  and  not  on  the  center  end  stake, 
and 'recited  that  the  claim  extended  seven  hundred  feet  in  a  northwesterly 


tain.     In  re  Willington  &  Ricketts,  Ont. 
Min.  Dec.  58   (1907). 

Staking  with  posts  smaller  than  those 
required  by  law  and  not  marked  as  re- 
quired is  not  a  substantial  compliance 
with  the  act.  Re  Willington  &  Ricketts, 
Ont.  Min.  Com.  Dec.  58    (1907). 

Where  staking  is  not  made  as  required 
by  the  act,  the  claim  is  abandoned  and 
subject  to  staking  by  another  qualified 
party.  Re  Cashraan  and  The  Cobalt  & 
James  Mines,  Limited,  Ont.  Min.  Com. 
Dec.  70  (1907). 

The  staking  must  be  proceeded  with 
promptly  or  rights  will  be  lost  to  a  sub- 
sequent discoverer  who  completes  his 
staking  first,  and  it  was  held  that  a  de- 
lay from  the  morning  of  one  day  to  the 
afternoon  of  the  next,  when  the  staking 
might  have  been  completed  the  same  day, 
was  a  fatal  delay.  Re  Mackay  and 
Boyer,  Ont.  Min.  Com.  Dec.  83  (1907). 
While  it  is  safer  to  make  all  new 
markings  of  lines,  the  adoption  of  old 
lines  when  putting  up  newly  marked 
posts   is   a   substantial   compliance  with 


the  act.     Re  Reichen  &  Thompson,  Ont. 
Min.  Com.  Dec.  88   (1907). 

Mistake  in  marking  number  one  post 
1250  feet  instead  of  910  feet  from  dis- 
covery, held  not  to  invalidate  the  claim. 
Re  Gray  and  Bradshaw,  Ont.  Min.  Com. 
Dec.  139  (1907). 

Staking  must  be  done  as  soon  as  rea- 
sonably possible  or  rights  will  be  lost  to 
a  subsequent  discoverer.  Re  Reichen  & 
Thompson,  Ont.  Min.  Com.  Dec.  88 
(1907);  Re  McLeod  &  Enright,  Ont. 
Min.   Com.   Dec.   149    (1908). 

It  seems  nothing  but  inability  to  com- 
plete the  actual  staking  out  of  a  claim 
will  excuse  delay,  and  it  was  held  that 
where  a  discovery  post  was  planted  on 
September  10th,  and  the  staking  not 
completed  till  September  24th,  one  who 
made  discovery  on  September  14th,  and 
completed  his  staking,  had  the  better 
right.  Re  Prombley  and  Ferguson,  Ont. 
Min.  Com.  Dec.  189    (1908). 

A  delay  in  staking  is  fatal  to  the 
validity  of  the  claim  only  where  the 
rights    of    some    other    party    intervene. 


646 


Water  and  Mineral  Cases. 


[Idaho 


direction  from  the  notice  and  discovery,  and  eight  hundred  feet  in  a 
southeasterly  direction  therefrom,  and  under  that  notice,  he  was  only 
entitled  to  eight  hundred  feet  in  a  southeasterly  direction  from  the  dis- 
covery point. 

Some  question  is  raised  in  regard  to  newly-discovered  evidence  and 
the  admission  of  counter  affidavits.  The  newly-discovered  evidence 
consisted  of  field  notes,  plat,  and  surveys  of  the  Buffalo  and  Parret 
fraction  lodes.  Upon  an  examination  of  those,  we  are  fully  satisfied  that 
the  decision  of  this  court  would  not  have  been  different  from  what  it  now 
is  had  that  evidence  been  introduced  on  the  trial.  We  do  not  think, 
as  contended  by  counsel,  that  this  newly-discovered  evidence,  had  it 
been  introduced  on  the  trial,  would  have  entitled  appellant  to  recover 
this  action. 

No  sufficient  reason  appearing  why  a  rehearsal  should  be  granted, 
the  application  is  denied. 

AILSHIE,  J.,  concurs. 


Re  Monroe  and  Downey,  Ont.  Min.  Com. 
Dec.  193   (1908). 

Former  markings  of  same  party  may 
be  used  to  assist  new  staking,  but  the 
practice  is  dangerous.  Re  Henderson  & 
Ricketts,  Ont.  Min.  Com.  Dec.  214 
(1908). 

Using  tree  instead  of  No.  1  post,  which 
tree  is  ten  feet  from  the  corner  and  not 
squared  or  cut  off  so  as  to  resemble  a 
mining  post,  is  not  a  substantial  com- 
pliance with  the  law.  Re  Smith  & 
Pinder,  Ont.  Min.  Com.  Dec.  241   (1908). 

The  omission  of  the  planting  of  three 
of  the  corner  posts  and  the  blazing  of 
the  lines,  renders  the  staking  of  a  min- 
ing claim  void.  Re  Milne  &  Gamble, 
Ont.  Min.  Com.  Dec.  249    (1908). 

A  claim  is  invalidated  by  failure  to 
plant  posts  with  license  number  thereon, 
as  required  by  the  act.  Re  Mae  Cosham 
&  Vanzant,  Ont.  Min.  Com.  Dec.  277 
(1908). 

A  mining  claim  is  invalidated  by 
failure  to  put  up  discovery  post.     In  re 


Smith  &  Kilpatrick,  Ont.  Min.  Com.  Dec. 
314    (1908). 

A  mining  application  was  held  invalid 
for  failure  to  mark  applicant's  name  and 
license  number  on  certain  of  the  posts, 
and  to  do  fresh  blazing.  In  re  Spurr, 
etc.,  Ont.  Min.  Com.  Dec.  390   (1909). 

Neglecting  to  number  two  of  the  cor- 
ner posts,  and  to  freshly  blaze  the  lines, 
works  an  abandonment  and  leaves  the 
land  open  to  location.  In  re  Kollmorgen 
&  Montgomery,  Ont.  Min.  Com.  Dec.  397 
(1909). 

Planting  discovery  post  outside  of 
claim  as  applied  for,  although  within  it 
as  marked  on  the  ground,  the  boundaries 
being  erroneously  marked,  renders  claim 
invalid.  Re  Burd  &  Paquette,  Ont.  Min. 
Com.  Dec.  419    (1909). 

Failure  to  mark  name  and  license 
number  and  description  of  lot  on  posts, 
renders  staking  invalid.  In  re  Burd  & 
Paquette,  Ont.  Min.  Com.  Dec.  419 
(1909). 


1911] 


Jennings  et  al.  v.  Davis. 


647 


JENNINGS  et  al.  v.  DAVIS. 
[Circuit   Court   of  Appeals,   Fourth   Circuit,   May   13,    1911.] 

187  Fed.  703. 

1.  Pipe  Lines — Degree  of  Care. 

A  pipe  line  is  not  a  nuisance,  and  liability  for  fire  caused  by  the  escape  of  oil 
is  limited  to  a  failure  to  exercise  ordinary  care  in  view  of  tbe  dangerous  character 
ox  the  product  conveyed. 

2.  Same — Instructions. 

An  instruction  that  oil  pipe  line  proprietors  are  bound  to  use  a  degree  of  care 
•in  proportion  to  the  risk  of  danger  attending  the  handling  of  such  substance  is 
erroneous,  because  capable  of  being  interpreted  as  requiring  too  high  a  degree  of 


3.  Same — Res    Ipsa    Loquitur. 

The  doctrine  of  res  ipsa  loquitur  is  not  applicable  to  the  blowing  out  of  a  gasket 
in  a  joint  of  a  pipe  line,  thereby  permitting  the  escape  of  oil. 

4.  Same — Duty  to   Prevent   Injury  from   Leaks. 

The  owner  of  a  pipe  line  upon  being  notified  of  the  escape  of  oil  is  bound  to  take 
precautions  to  prevent  its  being  ignited  by  the  usual  and  legitimate  use  of  the 
premises. 

5.  Same — Escaped  Oil — Negligence. 

Lighting  a  fire  in  the  forge  of  a  blacksmith  shop  with  notice  of  the  dangerous 
proximity  of  oil  which  escaped  from  a  pipe  line,  and  permitting  pieces  of  hot  iron 
to  fall  through  cracks  in  the  floor,  igniting  such  oil,  constitute  negligence. 

6.  Same — Fires — Intervening  Causes. 

The  ignition  of  oil  through  the  negligent  act  of  a  blacksmith  in  lighting  a  fire  in 
his  forge  with  knowledge  of  the  accumulation  beneath  his  premises  of  oil  escaping 
from  a  pipe  line,  held  the  proximate  cause  of  the  destruction  of  the  premises  of  a 
third  person. 

7.  Negligence — Proximate  Cause. 

Where  the  evidence  is  uncontroverted  and  but  one  inference  could  be  drawn,  the 
question  of  proximate  cause  is  for  the  court. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  West  Virginia,  at  Clarksburg. 


NOTE. 
Operation  of  Oil  Wells  as  a  Nuisance. 
Opening  a  gate  in  a  gas  well  to 
permit  the  gas  to  blow  off  accumulations 
of  water  does  not  render  it  a  nuisance 
per  se;  but  where  the  well  is  located 
near  a  highway  and  the  operation  is 
calculated  to  frighten  horses,  due  care 
must  be  exercised  to  prevent  injury 
therefrom.     Snyder  v.   Philadelphia  Co., 


54  W.  Va.,  149,  46  S.  E.  366,  63  L.  R.  A. 
896,  102  A.  S.  R.  941. 

It  will  not  be  presumed  that  an  oil 
well  in  process  of  construction  150  feet 
from  a  dwelling  house  will  become  a 
nuisance  when  completed,  and  its  con- 
struction will  not  be  enjoined.  Wind- 
fall Mfg.  Co.  v.  Patterson,  148  Ind.  414, 
47  N.  E.  2,  37  L.  R.  A.  381,  2  A.  S.  R. 
532. 


648 


"Water  and  Mineral  Cases.         [United  States 


Action  on  the  case  by  John  W.  Davis  against  E.  H.  Jennings  and  others, 
doing  business  under  the  firm  name  of  the  Producers'  &  Refiners'  Oil 
Company.     Judgment  for  plaintiff.     Defendants  bring  error.     Reversed. 

For  plaintiffs  in  error— Thos.  P.  Jacobs  and  Eugene  Mackey. 

For  defendant  in  error— John  Bassel  (Charles  G.  Coffman,  on  the 
brief).    . 

Before  GOFF  and  PRITCHARD,  Circuit  Judges,  and  CONNOR, 
District  Judge. 

CONNOR,  District  Judge.  This  is  an  action  on  the  case  instituted  in 
the  circuit  court  of  Wetzell  county  and  removed  into  the  Circuit  Court 
of  the  United  States  for  the  Northern  District  of  West  Virginia.  The 
purpose  of  the  action  is  to  recover  damages  sustained  by  the  alleged  neg- 
ligence of  the  plaintiffs  in  error,  hereinafter  called  defendants,  by  the  de- 
struction of  the  property  of  defendant  in  error,  hereinafter  called  plaintiff. 
The  cause  was  duly  brought  to  trial  before  the  court  and  jury.  From  a 
judgment  upon  a  verdict  for  plaintiff,  defendants  duly  assigned  error  and 
Drought  the  record  to  this  court  for  review. 

The  facts,  in  regard  to  which  there  was  no  substantial  controversy,  dis- 
close this  case :  Plaintiff  was  on  and  prior  to  December  8,  1903,  the  owner 
of  a  dwelling  used  as  a  boarding  house,  a  barn,  and  another  house  used 
as  a  blacksmith  shop  by  some  person  not  under  the  control  of  plaintiff. 
All  of  said  buildings  were  located  on  a  farm  leased  by  plaintiff  in  Wetzell 
County,  W.  Va.  Defendants,  residents  of  the  state  of  Pennsylvania,  owned 
a  pipe  line  used  to  convey  petroleum  oil  from  the  place  of  production  in 
Wetzell  County  to  Pittsburg,  Pa.  They  maintained  a  six-inch  trunk  oil 
pipe  line  laid  along  the  north  side  of  the  public  road  upon  the  same  side 
on  which  plaintiff,  subsequent  to  the  laying  of  the  pipe  line,  built  the 


Intervening  Causes  of  Explosion. 

Where  owing  to  defective  construction 
of  a  gas  well,  escaping  gas  accumulated 
in  the  basement  of  a  building,  being 
ignited  from  an  unknown  cause,  plaintiff's 
intestate  being  killed  by  falling  walls 
while  in  an  adjoining  building,  it  was 
held  that  defendant  having  set  a  danger- 
ous agency  in  motion  was  liable  irre- 
spective of  what  caused  the  ignition  of 
the  gas.  Coffeyville  Mining  &  Gas  Co. 
v.  Carter,  65  Kan.  565,  70  Pac.  635. 

See  also  Koelsch  v.  Philadelphia  Co., 


152  Pa.  355,  25  Atl.  522,  18  L.  R.  A. 
759,  34  A.  S.  R.  653,  where  it  was  held 
that  the  negligence  of  a  third  person 
in  igniting  gas  negligently  permitted  to 
escape  was  not  an  intervening  cause. 

The  principal  case  seems  to  have 
varied  from  the  rule  as  to  intervening 
causes,  breaking  the  sequence  of  the 
original  wrongful  act  as  laid  down  in 
the  Squib  case  (Scott  v.  Shepard,  3 
Wils.  403,  2  W.  Bl.  892)  and  a  long  line 
of  cases  since  that  decision  was  an- 
nounced.    See  Cooley  on  Torts,  p.  104. 


1911]  Jennings  et  al.  v.  Davis.  649 

houses  described  in  the  declaration.    A  mile  or  so  west  of  said  buildings 
defendants  maintained  at  West  Grove  a  pumping  station  which  forced 
the  oil  through  the  six-inch  pipe  into  Pennsylvania,  its  final  destination. 
At  about  75  feet  of  plaintiff's  house,  defendants  had  inserted  a  Y  joint, 
into  which  ran  and  connected  a  four-inch  branch  oil  pipe  line  running  off 
at  an  angle  and  in  a  northwesterly  direction  to  Wileyville  pumping  sta- 
tion,  distant  about  a  mile   from  the  Y   connection.     In  the   four-inch 
branch  line,  about  five  feet  from  the  connection,  was  inserted  a  flange 
or  joint   the  two  parts  of  which  were  drawn  and  fastened  together  with 
bolts,  and  for  the  purpose  of  making  a  close  connection,  which  could  not 
be  made  with  the  metal,  a  thin  piece  of  rubber— from  a  sixteenth  to  a 
thirtv-second  of  an  inch  in  thickness  and  technically  called  a  gasket- 
was  inserted  between  the  faces  of  the  two  halves  of  the  flange.    When  the 
bolts  were  tightened,  the  rubber  was  flattened,  and  the  connection  made 
ticht  and  safe.     Between  the  flange  and  the  Y  connection,  in  the  six-inch 
irTain  line,  was  installed  a  gate  or  valve  operated  by  a     wheel  _  on    top 
which,  when  turned,  closed  the  valve  and  stopped  the  flow  of  oil  through 
the  four-inch  line.  Defendants  employed  a  man  whose  duty  it  was  to  make 
daily  inspections  of  the   four-inch   and  of  this  flange.     The  Wileyville 
prmp  station  on  the  four-inch  line  and  the  Pine  Grove  station  on  the  six- 
inch  line  could  not  be  operated  at  the  same  time.     The  defendants  operated 
the  Wileyville  station  during  the  day,  shutting  it  down  about  6  o  clock 
in  the  evening,  and  operated  the  Pine  Grove  station  during  the  night. 

On  the  night  of  December  7,  IQ03,  at  about  8  o'clock.  Mrs.  Adams,  who 
in  the  absence  of  plaintiff  looked  after  his  boarding  house,  m  stepping 
from  the  front  porch  of  the  house  discovered  oil  upon  the  ground  which 
came  from  a  leak  in  the  flange.  She  telephoned  the  operator  at  Pine 
Grove  station  that  oil  was  escaping,  and  that  it  might  result  m  serious 
injury  or  some  serious  accident.  She  testified  that  someone  at  the  station 
at  Pine  Grove  answered,  requesting  her  to  ascertain  where  the  break  m 
the  line  was— that  she  sent  three  men  to  look  for  the  leak,  and  they  in- 
formed her  that  it  was  in  the  four-inch  line  near  the  junction  with  the 
six-inch  line— and  that  she  immediately  telephoned  this  information  to 
the  station.  Mr.  Maxwell  testified  that  he  had  charge  of  the  barn ;  that  he 
reached  there  about  8  o'clock  on  the  night  of  December  7,  1903,  and  dis- 
covered that  oil  was  escaping  and  running  around  the  house  and  barn  to 
such  an  extent  that  he  regarded  it  as  dangerous,  and  at  once  directed  the 
outdoor  lights  between  the  barn  and  the  house  to  be  put  out,  and  directed 
that  all  lights  and  fires  be  kept  out  of  the  stables  and  from  around  the 
house-  that  he  at  once  telephoned  the  Pine  Grove  station,  notifying  the 
men  there  that  oil  was  escaping,  and  that  attention  should  be  given  the 


650  Watek  and  Minekal  Cases.        [United  States 

matter  at  once;  that  there  was  danger  of  burning  the  property;  and  that 
someone  answered  that  they  would  have  the  matter  looked  after.  There 
was  evidence  on  the  part  of  plaintiff  that  two  persons  at  the  house  heard 
the  pulsating  or  throbbing  of  the  pump  until  late  at  night.  Defend- 
ants' witness,  Robert  Rynd,  testified  that  he  was  in  the  employment  of  de- 
fendants as  one  of  the  "connection  gang" ;  that  he  had  made  it  his  busi- 
ness to  go  over  that  line  every  day ;  that  he  was  away  on  December  7,  1903, 
at  other  work,  and  did  not  get  in  until  about  7:30  o'clock;  that  he  went 
up  the  line  before  he  ate  supper  to  see  that  it  was  all  right ;  that  he  went 
to  the  place  of  the  leak,  found  oil  on  the  ground;  it  was  caused  by  the 
gasket  blowing  out  of  the  flange — in  the  four-inch  line — about  four  or  five 
feet  from  the  junction  with  the  six-inch  line;  that  there  was  a  gate  or 
valve  between  the  flange  and  the  six-inch  line.    He  describes  this  as : 

"A  casting  made  on  the  same  principle  as  the  valve  on  a  range.  It  has 
a  stem,  with  a  wheel  on  one  end  and  a  sliding  valve  at  the  other  end. 
When  you  turn  the  wheel  and  open  the  valve  the  oil  goes  through,  and, 
when  you  turn  it  the  other  way,  it  closes  the  valve,  so  that  nothing  can 
get  through.  I  closed  the  gate  the  first  thing — tight — with  a  stick — that 
is,  put  a  stick  in  the  spokes  of  the  wheel  so  that  I  could  make  it  tight. 
It  could  not  leak  at  all;  it  was  impossible.  The  Wileyville  pump  station 
is  on  the  four-inch  line  about  half  a  mile  away — perhaps  a  little  more. 
This  pump  was  not  working  when  I  got  to  the  flange." 

He  said  that  he  could  not  repair  the  leak  that  night  very  well,  the  oil 
made  it  dangerous,  danger  of  igniting ;  that  he  went  there  the  next  morn- 
ing shortly  after  7  o'clock  to  repair  the  leak,  took  the  line  apart,  took  out 
the  bolts,  and  put  in  a  new  gasket,  screwed  up  the  bolts,  and  tightened 
the  flange.  That,  when  he  tightened  up  the  valve  the  night  before  it  took 
the  pressure  off  the  four-inch  line.  He  estimates  that  about  two  or  three 
barrels  of  oil  leaked  out  before  he  got  to  the  leak ;  that  he  had  been  going 
over  the  line  daily  to  see  that  it  was  all  right — that  it  was  in  good  con- 
dition. He  described  the  gasket  as  a  thin  rubber  packing — the  thinner 
the  better — that  goes  in  between  the  flanges.  He  says  that  only  a  part 
of  the  gasket  had  blown  out  "about  the  size  of  a  darning  needle  or  maybe 
not  so  large."  It  was  very  small — hardly  noticeable.  He  said  that  there 
would  be  no  throbbing — probably  a  little  "sizzling  noise" — just  like  water 
being  forced  out  of  a  little  hole.  The  other  witnesses  introduced  by  de- 
fendants corroborated  this  witness  in  regard  to  the  construction  of  the 
pipe  line,  flange,  gate,  gasket,  and  its  condition  when  examined,  etc. 
Plaintiff  introduced  no  testimony  upon  this  phase  of  the  case. 

Rynd  also  testified  that  he  went  to  plaintiff's  house  the  next  morn- 
ing, saw  the  oil;  that  it  ran  "around  below  the  house  and  then  down 
along  the  line  about  200  feet ;  that  it  stopped  under  the  blacksmith  shop, 
could  see  it  on  the  ground  and  under  the  shop  floor,  about  two  feet  from 


1911]  Jennings  et  al.  v.  Davis.  651 

the  ground."    He  also  testified  that  he  went  to  plaintiff's  house  the  night 
of  the  7th  of  December,  saw  woman  there;  that  she  told  him  the  oil  had 
been  escaping  and  running  under  the  house;  that  he  knew  this   from 
what  he  saw  at  the  line.     "She  said  she  had  already  called  there,  so  I 
made  sure  and  called  there  myself  again  to  see  if  they  were  shut  down 
and  they  were.    I  called  up  Piney  Grove."    Nothing  was  done  in  regard 
to  the  oil  that  night.    It  was  dark  at  half  past  7 ',  went  there  next  morn- 
ing at  daylight.    The  uncontradicted  testimony  showed  that  on  the  morn- 
ing of  December  8th,  at  about  8  o'clock,  the  blacksmith,  Cross,  came  to 
the  shop  and  made  a  fire  in  his  forge,  and,  for  the  purpose  of  shoeing  a 
horse  for  a  customer,  heated  a  piece  of  iron,  placed  it  upon  the  anvil  and 
cut  off  a  part  of  it,  which  fell  on  the  floor,  rolled  through  a  crack  into 
the  oil  under  the  shop,  causing  a  fire  which  instantly  followed  the  oil  up 
to  the  barn  and  house,  resulting  in  their  destruction  in  a  few  minutes. 
It  was  shown  by  plaintiff's  witness  that,  in  order  to  get  into  the  shop,  he 
was  compelled  to  step  over  the  oil,  as  it  ran  under  the  floor— "it  was_  a 
kind  of  jelly  all  around  there"— that  Cross  came  in  the  same  way  as  wit- 
ness ;  could  not  get  in  any  other  way.    "He  had  to  walk  in  it  to  get  in  the 

''win-er,  defendants'  witness,  says  that  he  went  to  the  shop  about 
the  time  that  Cross  came,  saw  the  oil,  and  told  Cross  not  to  put  fire  in 
his  forge;  that  it  was  dangerous. 

Bessey  another  witness  for  defendants,  says  that  he  saw  Cross  light- 
ing some  shavings  to  start  a  fire  in  the  forge  as  he  passed  the  door- 
that  he  was  using  a  match.  "I  told  him  it  was  not  safe  to  build  a  fire 
in  there  until  we  had  gotten  the  oil  from  under  the  shop— he  turned  his 
face  to  me  and  kind  of  smiled  and  went  right  on  to  building  the  fire. 
This  witness  was  in  defendants'  employment. 

Horner  another  witness  for  defendants,  says  that  he  heard  Winger 
tell  Cross'  not  to  make  a  fire  in  the  forge.  Plaintiff's  witness  Hurley, 
who  had  brought  the  horse  to  be  shod,  says  that  he  was  there  at  the 
time  Cross  built  the  fire,  and  that  he  did  not  hear  the  witnesses  tell 
him  not  to  build  the  fire.    Cross  was  not  introduced. 

At  the  conclusion  of  the  testimony,  defendants  requested  the  court 
to  instruct  the  jury  to  find  for  defendants,  which  was  refused.  De- 
fendants excepted  and  assigned  such  refusal  as  error.  Plaintiff  asked 
the  court  to  instruct  the  jury: 

"That  where  parties  are  handling  or  transporting  substances  that  are 
liable  to' cause  serious  injury  from  explosion  or  by  destroying  property 
bv  reason  of  contact  with  fire,  then  the  duty  is  devolved  upon  the  person 
or  persons  handling  or  transporting  such  substances  to  use  a  degree  of 
care  in  proportion  to  the  risk  or  danger  attending  the  handling  or  trans- 
portation of  such  substances." 


652  Water  and  Mineral  Cases.        [United  States 

Which  was  given,  and  defendants  excepted  and  assigned  error. 

The  defendants  requested  the  court  to  instruct  the  jury: 

"If  they  find  that  the  blacksmith,  Cross,  had  knowledge  of  the  exist- 
ence of  the  oil  about  and  under  his  shop,  and  of  the  danger  of  building 
a  fire  in  his  forge,  and  having  such  knowledge,  did  build  a  fire  in  his 
forge,  and  heat  therein  an  iron  until  red  hot,  and  cut  therefrom  a  small 
piece,  which  falling  through  a  crack  in  the  floor,  set  fire  to  the  oil  under- 
neath, the  jury  is  instructed  that  such  act  of  the  blacksmith  was  negli- 
gence on  his  part,  and  was  the  intervening,  efficient  cause  of  the  fire,  and 
the  plaintiff  cannot  recover,  and  the  verdict  of  the  jury  must  be  for 
the  defendants." 

Which  was  refused,  and  the  defendants  excepted  and  assigned  error. 

Defendants  further  requested  the  court  to  instruct  the  jury: 

"That  if  they  find  that  the  building  of  a  fire  in  the  blacksmith's  shop 
and  the  heating  therein  of  the  horseshoe  and  cutting  the  same  off  and 
permitting  the  same  to  fall,  in  red  hot  condition,  into  the  escaped  oil  on 
the  ground  under  the  shop  and  that  the  fire  which  burned  plaintiff's 
property  ignited  therefrom,  that  the  said  acts  of  said  blacksmith  are  the 
proximate  cause  of  the  fire,  and  plaintiff  cannot  recover." 

This  was  refused,  and  defendants  excepted.  Defendants  requested 
the  court  to  instruct  the  jury: 

"That,  if  they  find  from  the  evidence  that  the  negligence  of  the  black- 
smith was  the  proximate  cause  of  plaintiff's  injury  and  damage,  then 
there  can  be  no  recovery  against  defendants." 

This  was  refused,  and  defendants  excepted  and  assigned  error. 

Other  requests  for  instruction  were  refused,  but,  in  the  view  which 
we  take  of  the  case,  those  set  forth  with  the  instructions  given  present 
the  material  contention  of  the  defendants. 

The  record  does  not  present  the  question  discussed  and  decided  in 
Rylands  v.  Fletcher,  L.  R.,  3  H.  L.  330,  as  modified  by  Nichols  v.  Mars- 
land,  L.  R.,  10  Exch.  255,  because  no  damage  resulted  from  the  fact 
that  the  oil  escaped  and  run  upon  the  plaintiff's  premises.  The  action 
is  not  for  damage  sustained  by  the  trespass,  but  for  the  injury  which 
resulted  from  the  ignition  of  the  oil  on  the  premises.  The  defendant 
company  was  not  guilty  of  a  nuisance  in  maintaining  its  pipe  lines.  It 
was  engaged  in  a  legitimate  business.  Hence  the  doctrine  of  "absolute 
care,"  or,  as  sometimes  expressed,  the  "wild  beast"  theory,  is  not  appli- 
cable. Beven,  Neg.  399.  Liability  is  therefore  dependent  upon  the  exist- 
ence of  negligence,  which  may  arise  either  by  defective  construction  of 
the  pipe  and  connections  or  failure  to  make  a  proper  inspection.  The 
measure  of  duty  in  such  cases  is  well  stated  in  Gas  Co.  v.  Wellman,  114 
Ky.  79,  70  S.  W.  49,  1  Am.  and  Eng.  Ann.  Cas.  64,  citing  Nichols  v. 
Marsland,  supra.  "If  the  person  who  has  collected  the  water  has  done 
all  that  reasonable  care  and  skill  can  do,  he  is  not  liable  for  damages  over 
which  he  has  no  control,  and  that  a  distinction  must  be  drawn  between 


653 


1911]  Jennings  et  al.  v.  Davis. 

the  keening  of  a  tiger  or  other  dangerous  wild  beasts  which  get  loo 
accidentally  or  by  the  fault  of  others,  and  a  reasonable  use  of  property  in 
a     a;  beneficial  to  the  community.     *     *     *     The  authority  lay  down 
the  rule  that,  as  gas  is  a  useful  article,  almost  mdispensabl e  -  modern 
life  under  many  circumstances,  the  manufacture  and  sale  of  it  is  not 
an  illegal  act,  and  that  the  company  in  supplying  this  necessity  to  its  cus- 
tom rs  is  bound  only  to  exercise  such  care  and  skill  m  its  management 
as  the  dangerous  character  of  its  substance,  and  the  attending  circum- 
"ances    demand  of  a  person  of  ordinary  prudence."     Goodlander  Mih 
Co.  v.  Standard  Oil  Co.,  63  Feci.  400,  11  C.  C.  A.  253,  27  L.  R.  A.  580- 
It  will  be  observed  that  the  learned  judge  instructed  the  jury  that  the 
law  imposed  the  duty  "to  use  a  degree  of  care  in  proportion  to  the  risk 
of  danger  attending  the  handling  or  transportation  of  such  substances. 
While  we  are  quite  sure  he  did  not  so  intend,  the  language  quoted  is 
apable  of  being  interpreted  by  the  jury  as  calling  upon  the  defendant 
oPuse  such  a  degree  of  care  to  prevent  leaks  as  was  necessary  to  accom- 
plish that  result,  under  all  conditions.     The  correct  rule,  as  laid  do*n 
by  the  Supreme  Court  of  the  United  States,  and  by  a  very  large  ma- 
ioritv  of  the  courts  of  the  states,  is  that:  _ 

"Ne-li-ence  has  always  relation  to  the  circumstances  in  which  one  is 
placed "hat  an  ordinarily  prudent  man  would  do  or  omit  in  such  cir- 
cumstances."    Charnock  v.  Texas  Pac.  Ry.  Co.,  i94  U.  S.  432,  24  bup. 

C  The  statla^f  dmfis  that  of  the  conduct  of  a  reasonable  and  prudent 
man  "The  duty  is  dictated  and  measured  by  the  exigencies  of  the  oc- 
casion." Railroad  v.  Jones,  95  U.  S.  439;  *4  L.  Ed.  506.  Refc^ng 
to  the  authorities,  Mr.  Justice  Field,  in  Nitro  Glycerine  case,  15  Wall. 
K2A,  21  L.  Ed.  206,  says:  . 

"The  rule  deducible  from  them  is  that  the  measure  of  care  against  ac- 
cident  which  one  must  take  to  avoid  responsibility,  is  that  which  a  person 
oformnt  yprudence  and  caution  would  use  if  his  ™n  invests jweretobe 
affected  and  the  whole  risk  were  his  own.      14  Am.  &  t.n      line  930. 

Tested  by  these  principles,  we  think  it  very  doubtful  whether  any 
sufficient  evidence  of  a  breach  of  duty  on  the  part  of  defendant  ,s  dis- 
closed by  the  record.  There  is  no  suggestion  that  the  construction  of 
the  pipe  line  or  the  method  of  making  the  connection  was  improper  or 
unscientific;  nor  that  the  gasket  was  not  the  usual ^ an d  proper  method  of 
securing  a  perfect  and  safe  connection.  Unless  the  fart  that  .t  blev 
out"  as  testified  to  was  of  itself  evidence  of  either  defective  material 
or  unusual  pressure,  or  negligent  absence  of  inspection.  ^«°" 
defendant  the  duty  to  explain  the  leakage,  or,  ,n  other  words,  that  the 
f  of  leakage  brought  the  case  within  the  doctrine  of  res  ^.. 
the  plaintiff  failed  to  show  any  breach  of  duty  on  the  part  of  defendant. 


654  Water  and  Mineral  Cases.         [United  States 

We  are  of  the  opinion  that  the  mere  fact  that  a  leakage  was  caused 
by  the  blowing  out  of  the  gasket  does  not  constitute  evidence  of  negligence 
in  the  construction,  operation  or  quality  of  the  materials  used.  The 
testimony  fails  to  discover  any  negligence  in  regard  to  inspection  or 
prompt  correction  of  the  condition  which  caused  the  leak.  In  this  con- 
nection defendant  requested  the  court  to  instruct  the  jury: 

"That,  if  they  shall  find  from  the  evidence  that  the  blowing  out  of  the 
gasket  was  an  unforeseen  and  unavoidable  accident,  they  must  find  for 
the  defendant." 

This  request  was  refused,  and  such  refusal  is  assigned  for  error.  The 
refusal  to  give  this  instruction  deprived  the  defendant  of  a  defense  to 
this  aspect  of  the  case  to  which  it  was  entitled.  It  was  equivalent  to 
holding  the  defendant  to  the  absolute  duty  to  prevent  leakage ;  in  other 
words,  an  insurer  against  accident.  Conceding  this  to  be  true,  plaintiff 
insists  that,  after  defendant's  employees  were  notified  that  the  oil  had  es- 
caped and  run  upon  the  premises,  the  duty  was  imposed  to  either  promptly 
remove  it,  or  by  covering  it  with  dirt  to  prevent  its  being  ignited  by  the 
usual  and  legitimate  use  of  the  premises.  In  this  we  concur.  The  evi- 
dence tends  to  show,  without  contradiction,  that  it  would  have  been  im- 
practicable and  dangerous  to  interfere  with  the  oil  as  it  had  run  upon  the 
ground  on  plaintiff's  premises  during  the  night.  Whether  defendant  un- 
der the  circumstances  should  have  placed  a  watch  upon  the  premises  dur- 
ing the  night,  is  immaterial,  as  no  injury  resulted  from  its  failure  to  do  so. 

We  are  thus  brought  to  consider  the  determinative  question  presented 
by  the  record.  Assuming  that  defendant  was  negligent  in  failing  to 
cover  the  oil,  or  remove  it,  at  the  earliest  practicable  time,  and  that,  by 
permitting  it  to  remain  in  the  condition  described  on  the  following  morn- 
ing, it  was  liable  for  any  injury  to  the  premises  which  proximately  re- 
sulted from  the  condition  produced  by  the  presence  of  the  oil,  the  ques- 
tion arises,  was  the  ignition  of  the  oil,  under  the  circumstances  disclosed, 
a  natural  and  proximate  result  of  such  condition,  or  was  it  the  result 
of  the  act  of  an  intervening,  independent  agent?  Defendants'  prayers 
are  based  upon  the  assumption  that  the  jury  find  that  the  blacksmith, 
Cross,,  had  knowledge  that  the  oil  had  run  under  the  shop,  and,  with 
such  knowledge,  built  a  fire  in  the  forge,  heated  a  piece  of  iron,  placed 
it  on  the  anvil,  and  cut  therefrom  a  small  piece  which  fell  upon  the  floor 
and  through  a  crack  therein,  coming  in  contract  with  the  oil  under  the 
shop,  ignited  it,  and  thereby  caused  the  destruction  of  plaintiff's  property. 
It  will  be  observed  that  the  prayers  involve  the  finding  that  the  black- 
smith was  not  only  an  intervening,  independent  agent,  but  that  he  was 
negligent,  in  that  he  knew  of  the  conditions  which  rendered  it  dangerous 
to  pursue  the  course  which  resulted  in  the  injury.     The  appearance  of 


1911]  Jennings  et  al.  v.  Davis.  655 

the  oil  at  the  time  the  blacksmith  reached  his  shop  early  on  the  morning 
of  December  8th  and  his  conduct  are  disclosed  by  plaintiff's  evidence. 
The  only  controverted  testimony  relating  to  this  phase  of  the  case  is 
that  of  defendants'  witness,  who  says  that  he  told  Cross  not  to  make 
a  fire  in  the  forge — that  it  was  dangerous — and  the  evidence  of  plain- 
tiff's witness,  who  was  present,  and  says  that  he  did  not  hear  the  warn- 
ing. Cross  was  not  introduced.  Assuming  that  no  warning  was  given 
him,  we  have  the  uncontradicted  testimony  of  plaintiff's  witnesses  that, 
when  Cross  reached  the  blacksmith  shop,  he  could  not  go  into  it  with- 
out seeing  the  oil  on  the  ground  and  that  "he  had  to  walk  in  it  to  get  into 
the  shop,"  that  he  therefore  knew  the  conditions  when  he  made  a  fire, 
heated  and  cut  the  iron.  It  would  seem  that  no  two  reasonable  minds 
could  differ  in  reaching  the  conclusion  that  this  was  a  dangerous  thing 
t0  do — certainly  the  conditions,  in  the  light  of  which  he  was  acting,  im- 
posed upon  him  the  duty  to  use  ordinary  care  to  avoid  the  danger  of 
igniting  the  oil  under  the  shop.  Every  person  on  the  premises  recog- 
nized and  met  this  duty  from  the  moment  the  oil  was  found  to  be  on 
the  premises.  It  would  seem  to  be  clear  that  Cross  was  guilty  of  negli- 
gence. This  fact  does  not,  however,  necessarily  exonerate  defendants. 
His  negligence  may  have  been  only  concurrent  with  that  of  defendants, 
and  both  may  be  liable. 

The  question  therefore  remains  whether  the  negligence  of  Cross  was 
the  proximate  cause  of  the  injury— that  is,  whether  his  negligence  inter- 
vened and  insulated  the  defendants'  negligence.  In  the  solution  of  this 
question  recourse  must  be  had  to  certain  well  settled  principles.  Every 
one  guilty  of  negligence  is  liable  for  all  damage  which  proximately  results 
therefrom,  whether  anticipated  by  him  or  not.  The  question  of  rea- 
sonable anticipation  of  the  particular  injury  which  his  negligent  breach 
of  duty  produces  is  not  open  to  him.  Where  one  is  guilty  of  a  breach 
of  duty  resulting  in  injury  to  another,  to  whom  he  owed  the  duty,  "in 
the  absence  of  a  sufficient  and  independent  cause  operating  between  the 
wrong  and  the  injury,  the  original  wrong  must  be  considered  as  reaching 
to  the  effect,  and  proximate  to  it."  Railroad  v.  Kellogg,  94  U.  S.  469,  24 
L.  Ed.  256.  When,  however,  it  is  suggested  that  some  independent  cause 
intervened  between  the  wrong  and  the  injury  complained  of,  other  prin- 
ciples must  be  invoked.  Mr.  Justice  Strong,  in  Railroad  v.  Kellogg,  supra. 
states  the  principle  clearly.     He  says: 

"The  question  always  is :  Was  there  an  unbroken  connection  between 
the  wrongful  act  and  the  injury,  a  continuous  operation?  Did  the  facts 
constitute  a  continuous  succession  of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some  new  and  independent  cause 
intervening  between  the  wrong  and  the  injury?  It  is  admitted  that  the 
rule  is  difficult  of  application,  but  it  is  generally  held  that,  in  order  to 


656  Water  and  Mineral  Cases.         [United  States 

warrant  a  finding  that  actionable  negligence  or  an  act  not  amounting  to 
wanton  wrong  is  the  proximate  cause  of  an  injury,  it  must  appear  that 
the  injury  was  the  natural  and  probable  consequence  of  the  negligence 
or  wrongful  act,  and  that  it  ought  to  have  been  foreseen  in  the  light 
of  attending  circumstances." 

Confusion  sometimes  arises,  and  is  found,  in  decided  cases,  regard- 
ing the  doctrine  of  anticipated  results  of  negligence.  If  from  my  negli- 
gent act  or  omission  of  duty  injury  results,  in  the  absence  of  any  intelli- 
gent, responsible,  intervening  cause,  the  law  attributes  the  injury  to  my 
negligence,  and  I  will  not  be  heard  to  say  that  I  did  not  anticipate  that 
the  particular  injury  would  result  from  my  wrongful  act  or  breach  of 
duty.  In  such  cases  the  question  is  simple  and  the  liability  easily  settled. 
If,  however,  between  my  breach  of  duty  and  the  injury,  some  other 
agency — either  wrongful  or  otherwise — intervene,  and  I  seek  to  escape 
liability,  and  fix  it  upon  such  intervening  agency,  the  question  arises 
whether  or  not  I  shall  be  held  to  have  reasonably  anticipated  the  inter- 
vention or  the  existence  of  the  condition  from  which  the  injury  resulted, 
and  at  this  point  the  doctrine  of  prevision  or  anticipation  enters  into  the 
problem,  or,  as  said  in  Kellogg's  case,  "where  there  is  a  sufficient  and 
independent  cause,  operating  between  the  wrong  and  the  injury  the 
resort  of  the  sufferer  must  be  to  the  originator  of  the  intermediate  cause. 
The  inquiry  must  therefore  always  be  whether  there  was  any  interme- 
diate cause  disconnected  from  the  primary  fault  and  self  operating 
which  produced  the  injury."  Kellogg's  case,  supra.  If  the  intermediate  . 
cause  is  one  which  the  negligent  party  should  have  reasonably  antici- 
pated, it  is  not  "disconnected."  Dr.  Wharton,  after  stating  the  general 
principle,  says : 

"Reserving  for  another  point  the  consideration  of  consequences  re- 
sulting from  the  indefinite  extension  of  vicarious  liability,  we  may  now 
ask  whether,  on  elementary  principles,  the  action  of  an  independent  free 
agent,  taking  hold  unasked,  of  an  impulse  started  by  us,  and  giving  it  a 
new  course,  productive  of  injury  to  others,  does  not  make  him  the  jurid- 
ical starting  point  of  the  force  so  applied  by  him;  so  far  as  concerns 
the  party  injured?  For  the  spontaneous  action  of  an  independent  will  is 
neither  the  subject  of  regular,  natural  sequence  nor  of  accurate  precalcu- 
lation by  us."     Whart.    Neg.    138. 

"If  the  intervening  cause  be  of  such  a  nature  that  it  would  be  unrea- 
sonable to  expect  a  prudent  man  to  anticipate  its  happening,  he  will  not 
be  responsible  for  damage  resulting  solely  from  the  intervention."  Bar- 
rows, Neg.  17. 

The  latest  English  writer  on  negligence,  after  a  careful  review  of  the 
decided  cases,  says : 

"The  principle  that  to  fix  liability  for  injuries  brought  about  through 
a  complicated  state  of  facts,  the  last  conscious  agency  must  be  sought, 
and  the  consideration  that  if,  between  the  agency  setting  at  work  the 


1911]  Jennings  et  al.  v.  Davis.  657 

mischief  and  the  actual  mischief  done,  there  intervenes ^  a  conscious 
agency  which  might  or  should  have  averted  mischief,  the  original  wrong- 
doer ceases  to  be  liable."    Beven,  Neg.  53. 

In  Scheffer  v.  Railroad  Co.,  105  U.  S.  249,  26  L.  Ed.  1070,  plaintiff's 
intestate  while  a  passenger  was  injured  in  a  sleeping  car.  It  was  alleged 
that  by  reason  of  the  injuries  sustained  he  became  insane  and  committed 
suicide.     Sustaining  a  demurrer  to  the  declaration,  Air.  Justice  Miller 

said: 

"The  suicide  of  Scheffer  was  not  a  result  naturally  and  reasonably  to 
be  expected  from  the  injury  received  on  the  train.  It  was  not  the  nat- 
ural and  probable  consequence,  and  could  not  have  been  foreseen  in  the 
light  of  the  circumstances  attending  the  negligence  of  the  officers  in 
charge  of  the  train." 

In  Cole  v.  German,  etc.,  Soc,  124  Fed.  113,  59  C.  C.  A.  593,  63  L. 
R.  A.  416,  Sanborn,  Circuit  Judge,  in  an  exhaustive  and  well  sustained 
opinion,  says : 

"An  injury  which  could  not  have  been  foreseen  nor  reasonably  antici- 
pated is  not  actionable,  and  such  an  act  is  either  the  remote  cause,  or 
no  cause  whatever  of  the  injury."  Fawcett  v.  Railroad  Co.,  24  W.  Va. 
759;  Teis  v.  Smuggler  Mining  Co.,  158  Fed.  260,  85  C.  C.  A.  478,  15  L. 
R.  A.  (N.  S.)  893. 

In  Railway  v.  Calhoun,  213  U.  S.  8,  29  Sup.  Ct.  322,  53  L.  Ed.  671, 
Mr.  Justice  Moody  says : 

"The  law  in  its  practical  administration  in  cases  of  this  kind  regards 
only  proximate  or  immediate,  and  not  remote  causes,  and  in  ascertaining 
which  is  proximate  and  which  remote  refuses  to  indulge  in  metaphysical 
niceties.  Where  in  the  sequence  of  events  between  the  original  default 
and  the  final  mischief  an  entirely  and  unrelated  cause  intervenes,  and  is 
of  itself  sufficient  to  stand  as  the  cause  of  the  mischief,  the  second  cause 
is  ordinarily  regarded  as  the  proximate  cause,  and  the  other  as  the  re- 
mote cause.  This  is  emphatically  true  where  the  intervening  cause  is 
the  act  of  some  person  unrelated  to  the  original  actor.  *  *  *  If  the 
misconduct  is  of  a  character  which,  according  to  the  usual  experience 
of  mankind,  is  calculated  to  invite  or  induce  the  intervention  of  some 
subsequent  cause,  the  intervening  cause  will  not  excuse  him,  and  the 
subsequent  mischief  will  be  held  to  be  the  result  of  the  original  miscon- 
duct. This  is  upon  the  ground  that  one  is  held  responsible  for  all  the 
consequences  of  his  act  which  are  natural  and  probable,  and  ought  to 
have  been  foreseen  by  a  reasonably  prudent  man." 

There  being  no  such  relation  between  the  blacksmith  and  plaintiff  as 
would  make  the  latter  responsible  for  the  former's  negligence,  there 
is  no  element  of  contributory  negligence  involved.  Cross  was,  in  re- 
spect to  both  parties,  an  independent,  unrelated  agent.  His  act  was 
negligent.  The  sole  question,  therefore,  is  whether  such  negligence  was 
concurrent  or  independent  of  that  of  the  defendants  and  this  depends 
upon  whether  defendants  ought  reasonably  to  have  foreseen  or  antici- 
W.  &  M—  42 


658  Water  and  Mineral  Cases.        [United  States 

pated  that  he  would  go  to  the  shop  in  the  early  morning — see  the  oil  as  it 
lay  upon  the  ground  and  ran  under  the  shop — light  the  fire — heat  the 
iron — cut  off  a  piece  in  such  way  as  to  cast  a  part,  red  hot,  upon  the  floor, 
in  which  was  a  crack,  through  which  it  would  probably  fall  into  the  oil 
producing  the  result  for  which  it  is  sought  to  hold  them  liable.  There 
is  no  suggestion  that  defendants'  employees  knew  that  the  building  was 
used  as  a  blacksmith  shop  or  of  Cross'  habit  in  the  use  of  it,  unless  we 
take  the  testimony  of  defendants'  witness  and  this  is,  upon  the  plaintiff's 
theory,  to  be  eliminated.  We  are  of  the  opinion  that,  taken  in  the  aspect 
most  favorable  for  plaintiff,  the  act  of  Cross  was  that  of  an  independent, 
intervening  agent  for  which  defendants  were  not  responsible,  and  there- 
fore the  proximate  cause  of  the  destruction  of  the  property.  The  learned 
judge  instructed  the  jury,  among  other  things: 

"That  if  they  believed  from  all  the  evidence  in  the  case,  and  the  circum- 
stances disclosed  by  such  evidence,  that  the  blacksmith,  Cross,  with  full 
knowledge  of  the  danger,  negligently  and  without  proper  care,  caused 
the  piece  of  hot  iron  to  ignite  the  oil  underlying  his  shop,  then  his  act 
would  be  the  intervening  cause;  but,  if  the  jury  believe  from  the  evidence 
that  such  act  was  not  negligently,  and  without  proper  care,  done,  it  would 
not  constitute  such  intervening  cause  and  as  to  this  the  jury  alone  must 
determine  from  the  evidence." 

In  the  view  which  we  take  of  the  uncontroverted  testimony,  the  con- 
duct of  Cross  was  negligent.  While  it  is  true  that  ordinarily  the  ques- 
tion of  proximate  cause  is  for  the  jury,  it  is  equally  true  that,  where  the 
evidence  is  uncontroverted  and  but  one  inference  should  be  drawn,  the 
question  is  one  of  law  for  the  court.  The  record  brings  the  case  within 
this  principle.  Cole  v.  German  Sav.  &  Loan  Co.,  124  Fed.  113,  59 
C.  C.  A.  593,  63  L.  R.  A.  416;  Teis  v.  Smuggler  Mining  Co.,  158  Fed. 
260,  85  C.  C.  A.  478,  15  L.  R.  A.  (N.  S.)  893. 

For  the  reasons  set  out,  we  are  of  the  opinion  that  the  judgment  should 
be  reversed  and  a  new  trial  ordered. 

Reversed. 


1905] 


Wheelden  v.   Ckanston. 


659 


WHEELDEN  v.  CRANSTON. 

[Supreme  Court  of  British  Columbia,  December  9,  1905.] 
12  Brit.  Col.  489. 


1.  Mines — Working  Claim — Building   Cabin. 

Building  a  cabin  for  living  purposes  on  a  placer  claim  is,  under  Act  of  1882,  a 
representation  and  bona  fide  working  of  claim. 

2.  Same — Rock-Cut. 

Bona  fide  construction  of  rock-cut  and  drain  through  adjoining  claim,  and  work- 
ing that  part  of  same,  is  a  working  of  claim  in  question. 

3.  Same — Abandonment    of    Placer    Claim — Relocation. 

Formal  notice  of  abandonment  of  placer  "creek  claim"   with  attempted  location 
under  act  then  repealed  held  not  necessary  to  a  valid  location  under  Act  of  1901. 

4.  Same — Marking   Boundaries — Posts. 

One  post  may  be  used  to  designate  two  placer  claims  with  coterminous  boundaries. 

5.  Same — Purpose  of  Placer  Act. 

Purpose  of  section  49  of  the  Placer  Act  is  to  protect  the  rights  of  surrounding 
owners  and  the  crown. 

6.  Same — Damages   for    Attempted    Relocation. 

Attempted  location  of  claim  upon   an  existing  one  held  to   entitle   plaintiff  to 
nominal  damages,  in  absence  of  evidence  of  special. 

7.  Same — Injunction  against  Relocation. 

Perpetual  injunction  held  to  lie  against  one  attempting  to  locate  a  claim  upon  an 
existing  one. 

Trial  before  MARTIN,  J.,  at  Nelson,  on  the  8th  of  December,  1905. 

On  the  3d  of  December,  1904,  the  plaintiff  located  a  placer  claim 
situate  on  49  Creek  near  Nelson,  B.  C,  which  claim  he  called  the  Owl. 
This  claim  he  recorded  at  Nelson  on  the  6th  of  December.  1904.  Upon 
the  nth  of  September,  1905,  the  defendant  located  over  this  claim  a 
placer  claim  called  Golden  Dawn,  which  he  recorded  on  the  same  day. 

The  defence  was  that  the  plaintiff  had  located  the  ground  covered  by 
the  Owl  on  the  1st  of  December,  1904,  under  the  same  name,  viz.:  Owl. 
which  was  in  existence  when  the  plaintiff  on  the  3d  day  of  December, 
1904,  located  the  Owl  first  above  named.  Further  defences  were  set 
up  on  the  trial  as  follows :  the  plaintiff  had  not  represented  and  bona  fide 
worked  the  Owl  claim  since  the  location  thereof,  and  it  had  lapsed;  to 


NOTE. 

As  to  necessity  of  marking  location  on 
the  ground  generally,  see  note  to  Flynn 


Group  Mining  Co.  v.  Murphy,      ante,  p. 
619. 


660  Water  and  Mineral  Cases.     [British  Columbia 

which  the  plaintiff  urged  that  while  he  had  not  been  actually  mining  on 
the  claim,  he  built  trails  and  a  cabin  upon  the  same,  and  was  engaged 
in  digging  a  cut  through  the  adjoining  claims  with  the  consent  of  the 
owners,  which  cut  was  necessary  in  order  that  he  might  get  a  tail  race 
for  his  flumes,  etc.,  and  thus  mine  the  Owl  claim.  In  reply  to  the  defence 
first  named,  he  said  that  the  Owl  located  on  the  ist  of  December,  1904, 
was  improperly  located,  and  hence  not  a  placer  claim,  and  need  not  be 
abandoned  in  order  that  the  Owl  located  on  the  3d  of  December,  1904, 
and  now  claimed  under,  might  be  located. 

For  plaintiff — S.  S.  Taylor,  K.  C. 

For  defendant — A-  M.  Johnson. 

MARTIN,  J.  Several  questions  on  the  Placer  Mining  Act  are  raised 
herein,  and  I  shall  dispose  of  them  in  their  order. 

First.  It  is  objected  that  the  plaintiff  has  not  "represented  and  bona 
fide  worked  *  *  *  continuously,  as  nearly  as  practicable  during 
working  hours"  the  placer  claim  the  Owl,  in  question,  while  he  was 
engaged  in  building  his  cabin  on  the  claim  in  which  to  live  while  work- 
ing it.  This  point  has  already  been  answered  in  favor  of  the  plaintiff 
by  the  judgment  of  this  court  in  Woodbury  v.  Hudnut  (1884),  1  B.  C. 
(Pt.  2)  39  at  pp.  41,  42,  1  M.  M.  C.  3  at  page  34,  wherein  it  is  laid  down 
as  follows : 

"It  was  said  that  the  work  to  be  done  on  a  claim  (which  is  to  be  worked 
continuously)  must  be  miner-like  work— that  building  a  house  is  not 
miner-like  work  at  all ;  and,  moreover,  that  the  house  in  question  was  not 
on  the  Kootenay  Chief  ground  at  all,  though  not  far  off.  Now,  of  course, 
in  Cornwall  or  Northumberland,  building  a  house  is  not  miner's  work- 
it  is  not  mining  at  all.  In  old  and  highly  organized  countries  the  land- 
lord mines  with  hired  labor,  and  puts  up  houses  for  his  men.  Yet  the 
cost  of  those  houses  is  just  as  much  part  of  his  mining  capital  invested 
in  the  mines,  and  the  houses  are  just  as  useful  for  working  the  mines 
as  pumps  and  furnaces  with  which  the  water  is  removed  or  the  ore 
roasted.  And  among  the  hills  of  British  Columbia  the  first  thing^  a 
miner  does  (when  he  intends  continuous  working)  is  to  secure,  or  build 
if  necessary,  a  cabin  in  a  spot  convenient  as  possible  to  his  claim.  It  is 
not  necessary  that  it  should  be  actually  on  his  ground.  There  may  be 
overwhelming  advantages  in  wood  and  water  a  quarter  of  a  mile  off. 
It  is  quite  sufficient  if  it  be  in  a  place  manifestly  convenient  for  the 
workers.  The  building  of  a  cabin  on  first  settling  down  to  the  serious 
working  of  a  mineral  claim  is  therefore  just  as  much  miner's  work  in 
reference  to  the  holding  and  working  the  claim  as  is,  afterwards,  the 
sinking  of  a  shaft  or  the  driving  a  tunnel,  or  building  a  pump." 


1905]  Wheelde:n-  v.   Ceanston.  661 

That  case  was  decided  on  the  following  sections  of  the  Act  of  1882: 

"48.  Every  free  miner  shall,  during  the  continuance  of  his  certificate, 
have  the  exclusive  right  of  entry  upon  his  own  claim,  for  the  miner-like 
working  thereof,  and  the  construction  of  a  residence  thereon,  and  shall 
be  entitled  exclusively  to  all  the  proceeds  realized  therefrom ;  provided, 
that  his  claim  be  duly  registered,  and  faithfully  and  not  colorably  worked; 
but  he  shall  have  no  surface  rights  therein.  Provided  also,  that  the 
gold  commissioner  may,  upon  application  made  to  him,  allow  adjacent 
claimholders  such  right  of  entry  thereon  as  may  be  absolutely  necessary 
for  the  working  of  their  claims,  and  upon  such  terms  as  may  to  him 
seem  reasonable. 

"51,  A  claim  shall  be  deemed  to  be  abandoned  and  open  to  the  occu- 
pation of  any  free  miner  when  the  same  shall  have  remained  unworked 
on  working  days  by  the  registered  holder  thereof  for  the  space  of  seventy- 
two  hours,  unless  sickness  or  other  reasonable  cause  be  shown. 

"52.  Every  full  sized  claim  or  full  interest  as  defined  in  this  Act  shall 
be  represented  and  bona  fide  worked  by  the  owner  thereof,  or  by  some 
person  on  his  behalf." 

Second.  It  is  submitted  that  because  the  plaintiff  had  already  located 
a  claim  covering  the  same  ground,  on  December  1st,  he  could  not  relocate 
it  subsequently  (on  December  3d),  without  complying  with  section 
7  of  the  Placer  Mining  Act  Amendment,  Act  1901,  i.  e.,  in  this  case  he 
should  have  posted  formal  notice  of  abandonment  on  the  four  corner 
posts  of  his  claim  because  it  had  not  yet  been  recorded.  What  happened 
is  peculiar.  The  plaintiff  essayed  to  make  a  valid  location  of  a  "creek 
claim"  under  the  repealed  section  20  of  the  statute  of  1897,  which  gave 
him  a  claim  of  100  feet  square.  What  he  did  amounted  to  making  a 
valid  location  under  that  Act,  but  when  he  came  to  record  the  location 
he  found  out  from  the  mining  recorder  that  the  law  had  been  changed 
and  that  by  the  Act  of  1901,  then  in  force,  he  was  entitled  to  a  claim  of 
250  feet  square  which  could  only  be  obtained  by  conforming  to  the 
formalities  of  that  statute  which  differed  from  the  former,  under  which 
he  had  made  his  location.  He  thereupon  decided  to  proceed  no  fur- 
ther with  his  abortive  attempt  under  the  former  statute,  and  proceeded 
to  locate  under  the  existing  one.  In  such  circumstances  I  am  of  the 
opinion  that  he  did  right  in  treating  the  result  of  his  former  misconceived 
efforts  as  a  nullity,  and  consequently  it  was  unnecessary  to  comply  with 
said  section  7.  There  was  no  bar  to  his  doing  so,  because  no  valid  claim 
had  been  located  by  him  on  that  creek,  and  therefore  he  was  justified  in 
beginning  de  novo  to  locate  one.  Though  it  does  not,  in  this  view, 
strictly  affect  the  question,  yet  I  also  point  out  that  said  section  7  provides 
that  after  observance  of  its  conditions  the  locator  "shall  thereupon  be 
entitled  to  locate  and  record  another  placer  claim  upon  other  ground  in 


662  "Water  and  Mineral  Cases.     [British  Columbia 

lieu  of  the  abandoned  claim/'  etc.  It  would,  I  think,  be  found  difficult 
to  apply  such  language  to  the  exceptional  facts  of  this  case  because  it 
was  the  same  ground  that  was  relocated  by  the  same  locator. 

Third.  It  is  urged  that  the  relocated  claim  is  invalidated  because  in 
placing  a  necessary  post  on  and  about  the  centre  of  the  common  boundary 
line  between  the  Owl  and  the  Eagle  claims,  which  line  was  exactly 
coterminous  in  each  claim,  one  post  was  used  to  do  duty  for  both  claims. 
On  one  side  of  the  post  was  written  the  name  of  the  Owl  claim,  and  on 
the  other  that  of  the  Eagle.  Tt  is  contended  that  the  act  requires  the 
erection  of  a  complete  and  distinct  set  of  posts  for  each  claim,  and  that 
no  post  can  perform  a  joint  duty.  Before  adopting  such  a  very  technical 
construction  such  an  intention  of  the  legislature  must  clearly  appear, 
but  I  can  find  nothing  in  the  act  which  positively  requires  it.  What  was 
done  was  at  once  convenient  and  plain  and  the  notice  on  the  post  showed 
the  two  claims  it  pertained  to,  so  that  the  object  of  the  act  in  requiring 
due  marking  of  the  boundary  had  been  accomplished. 

Finally,  the  claim  is  sought  to  be  invalidated  on  the  ground  that  it 
was  not  continuously  worked,  or  worked  at  all,  for  many  weeks  while 
the  owners  were  working  on  the  rock  cut  (drain)  on  the  Hawk  claim, 
just  below  the  Owl,  on  the  same  creek.  It  is  clear  from  the  evidence 
that  it  was  necessary  for  the  miner-like  working  of  the  Owl  that  a  rock 
cut  and  drain  should  be  constructed  through  the  Hawk.  That  work 
was  consequently  undertaken  by  the  Owl's  owners  on  a  grub  stake 
agreement  with  the  owner  of  the  Hawk,  and  the  plaintiff  relies  upon 
section  49  of  the  Placer  Act  which  provides  that : 

"A  tunnel  or  drain  shall  be  considered  as  part  of  the  placer  claim, 
or  mine  held  as  real  estate,  for  which  the  same  was  constructed." 

There  was  no  necessity  for  the  plaintiff  to  resort  to  section  48  and 
obtain  and  record  the  license  of  the  gold  commissioner,  for  that  section 
was  passed  to  protect  the  rights  of  other  owners  and  the  crown,  while 
here  the  plaintiff  had  obtained  the  leave  and  licence  of  the  party  con- 
cerned. If  a  drain  is  to  be  considered  a  part  of  the  placer  claim,  then 
the  miner-like  and  necessary  work  done  on  it  applies  to  and  must  be  held 
to  be  a  representation  of  the  claim.  There  is  nothing  new  in  the  idea 
that  certain  work  done  off  a  claim  and  in  connection  with  it  must  be  so 
regarded,  because  in  Woodbury  v.  Hudnut,  supra,  the  cabin  was  not 
built  on  the  claim  in  question.  The  principle  was  sought  to  be  distin- 
guished because  here  the  plaintiff  was  also  working  the  Hawk  under 
the  agreement  as  well  as  making  the  drain.  But  surely  because  the 
owners  concerned  took  advantage  of  the  occasion  to  work  that  part  of 
the  Hawk  through  which  the  rock  cut  and  drain  were  constructed,  and 
so  save  the  gold  therein,  the  plaintiff  had  not  lost  his  statutory  right  to 
have  such  drain  regarded  as  part  of  his  claim?     Of  course  if  I  were 


1905]  Wheelden  v.   Cranston.  663 

satisfied  that  this  was  merely  a  colorable  scheme  to  work  the  Hawk  and 
let  the  Owl  lie  idle  that  would  be  a  very  different  matter. 

It  follows  that  the  plaintiff's  location,  being  a  valid  one,  had  been 
trespassed  upon  by  the  defendant,  and  for  that  trespass  damages  must 
be  awarded,  but  only  nominal,  i.  e.,  $i,  according  to  Woodbury  v.  Hudnut, 
as  there  is  no  evidence  of  special  damage  shown,  and  there  will  be  a 
perpetual  injunction  restraining  future  trespass,  as  prayed. 


664: 


Watek  and  Mineral  Cases.     [British  Columbia 


GROBE  v.  DOYLE. 

[Supreme   Court  of   British   Columbia,   February    17,    1906.] 

12  Brit.  Col.  191. 

Mines — Net  Proceeds  of  Ore — Contracts. 

Under  a  contract  for  the  sale  of  mining  property  providing  that  in  case  any  ore 
is  shipped  from  the  property  during  a  certain  period  the  net  proceeds  shaH  be 
deposited  to  the  credit  of  the  vendors  and  applied  in  part  payment,  the  term  net 
proceeds"  is  to  be  taken  to  refer  merely  to  ore  shipped  to  a  mill  or  smelter  for 
conversion  and  the  deductions  to  be  made  are  the  deductions  which  in  the  ordinary 
course  of  business  would  be  made  at  the  smelter,  including  freight  and  smelting 
charges. 

Action  tried  before  DUFF,  J...  at  Nelson,  on  the  i6th  and  17th  of  Feb- 
ruary, 1906,  to  rescind  an  agreement  whereby  the  defendant  was  given 
an  option  to  purchase  the  Yankey  Girl  mine,  and  develop  and  work  the 
same  during  the  term  of  the  option.  The  plaintiffs  further  claimed  the 
proceeds  of  ore  mined  and  shipped  by  the  defendant  in  his  operations 
under  the  option,  and  alleged  a  number  of  breaches  by  defendant  of  the 
agreement  in  question,  among  others,  that  the  net  proceeds  of  the  ore 
mined  had  not  been  paid  to  their  account  as  provided  in  the  agreement. 
The  defendant  maintained  that  there  were  no  net  proceeds  after  deduct- 
ing expenses  of  mining  and  marketing. 

For  plaintiffs— W.  A.  Macdonald,  K.  C,  and  S.  S.  Taylor,  K.  C. 

For  defendants— R.  M.  Macdonald,  and  R.  W.  Hannington. 

DUFF;  J.  The  agreement  between  Lovell,  Grobe  and  Macleod  on 
the  one  hand,  and  Doyle  on  the  other,  provides  for  the  sale  of  certain 


NOTE. 

There  is  apparently  no  case  in  which 
a  contract  of  the  same  terms  as  that 
involved  in  the  principal  case  has  been 
considered  by  the  courts  of  the  United 
States.  As  valuable  for  purposes  of 
comparison,  however,  the  following  cases 
are   cited : 

In  Vietti  v.  Nesbet  (1895),  22  Nev. 
390,  41  Pac.  151,  18  Mor.  Min.  Rep. 
247,  a  contract  or  agreement  had  been 
entered  into  by  all  the  parties  in  interest 


whereby  defendants  were  to  haul  ore 
produced  at  the  mine  which  was  being 
operated  by  plaintiff  to  their  mill  and 
there  reduce  it  to  bullion,  they  to 
account  for  85  per  cent  of  the  assay 
value  of  the  ore.  Of  the  proceeds,  the 
defendants  were  first  to  be  allowed  $25 
per  ton  for  hauling  and  working  the 
ore  and  then  plaintiff  was  to  be  paid 
the  expense  of  extracting  it  from  the 
mine.  Under  the  terms  of  this  agree- 
ment it  was  held  that  both  the  expense 


1906] 


Grobe  v.  Doyle. 


665 


mineral  claims  therein  mentioned  to  Doyle,  the  defendant,  in  considera- 
tion of  certain  payments  to  be  made  on  dates  specified.  In  the  meantime, 
according  to  the  terms  of  agreement,  the  defendant  became  entitled  to 
be  put  in  possession  of  the  mineral  claims,  and  acquired  the  right  to 
develop  and  work  them  subject  to  certain  conditions  as  to  the  number 
of  men  to  be  employed  and  the  manner  in  which  the  development  work 
was  to  be  done.  The  agreement  also  provides  that  "if  any  ore  is  shipped 
from  the  property  the  net  proceeds  are  to  be  deposited  to  the  credit 
of  the  vendors  at  the  Canadian  Bank  of  Commerce,  and  to  be  applied 
in  part  payment  to  the  vendors."  The  agreement  also  contains  a  clause 
which  may  be  described  as  a  forfeiture  clause,  conferring  upon  the  plain- 
tiffs the  right  to  cancel  the  agreement  in  case  of  breach  by  the  defendant 
of  any  of  its  stipulations.  The  plaintiffs  claim  that  the  defendant  broke 
or  committed  a  breach  of  the  terms  of  the  agreement  and  so  brought  the 
forfeiture  clause  into  play  at  various  times  during  the  months  of  June 
and  July  following  its  execution.  The  breaches  complained  of,  are  that 
the  defendant  in  prosecuting  development  work  and  extracting  ore  from 
the  mineral  claims  violated  the  terms  of  the  agreement  in  respect  of  the 
manner  in  which  the  work  was  to  be  done ;  that  the  defendant  failed  to 
keep  employed  the  number  of  men  that  the  agreement  provided  he  should 
keep  employed  for  the  purpose  of  prosecuting  development  work  during 
the  life  of  the  agreement ;  that  clause  y,  relating  to  the  disposition  of 
the  proceeds  of  ore  shipped  from  the  property,  has  been  violated  in  that 
the  net  proceeds  of  a  large  quantity  of  ore  shipped  from  the  property 
have  not  been  paid  in  accordance  with  the  terms  of  that  clause. 

It  is  not  in  my  judgment  necessary  that  I  should  decide  upon  the 
questions  which  arise  respecting  the  manner  in  which  the  defendant 
worked  the  mineral  claims,  or  respecting  the  allegation  that  he  failed 
to  employ  on  development  work  the  number  of  men  required  by  the  agree- 
ment. I  have  come  to  the  conclusion  that  the  defendant  committed  a 
breach  of  clause  y,  and  that  is  sufficient  to  dispose  of  the  case.  It  is 
not  disputed  that  a  large  quantity  of  ore  was  shipped  from  the  properties 


of  milling  and  mining  the  ore  would 
reduce  the  net  proceeds  which  would  in 
the  end  go  to  the  several  parties. 

In  Silver  Valley  Min.  Co.  v.  North 
Carolina  Smelting  Co.  (1898),  122  N. 
C.  542,  29  S.  E.  940,  19  Mor.  Min.  Rep. 
339,  under  a  smelting  contract  by 
which  the  smelting  company  was  to  do 
the  work  of  smelting  ore  for  ten  dollars 
for  each  and  every  ton  of  ore  so  worked 
and  smelted  for  working  charges  therefor 
and  pay  to  the  mining  company  95  per 


cent,  of  the  silver  contents  of  the  product 
of  the  ore  after  deducting  therefrom  the 
smelting  charges  of  ten  dollars  per  ton,  it 
was  held  that  the  construction  of  the 
contract  was  one  of  law  and  should  not 
have  been  submitted  to  the  jury.  The 
court  says  "the  words  95  per  cent,  of 
the  silver  contents  of  the  product  of 
said  ore"  mean  95  per  cent,  of  the  ore 
reduced  to  its  smelted  condition,  it  can- 
not mean  95  per  cent,  of  the  silver  con- 
tents of  the  mas3  of  ore  as  it  was  dug 


666 


Water  and  Mineral  Cases.     [British  Columbia 


which  are  the  subject  of  this  agreement  to  the  Hall  Mines  and  Granby 
smelters,  and  that  the  proceeds  of  the  smelting  of  these  ores  were 
received  by  the  defendant  and  that  these  proceeds  have  not  been  depos- 
ited in  accordance  with  the  terms  of  that  clause.  It  is  contended  on  behalf 
of  the  defendant  that  the  phrase  "net  proceeds"  as  used  in  that  clause 
means  a  sum  to  be  arrived  at  after  deducting  from  the  gross  proceeds  the 
cost  of  smelting,  the  cost  of  delivery  at  the  smelter,  and  the  cost  of  min- 
ing; and  it  is  not  disputed  that  on  that  construction  there  is  nothing  which 
can  be  described  as  net  proceeds.  That  is  construction  which  in  mv 
judgment  cannot  be  sustained.  The  plaintiff's  offered  evidence  to  show 
that  in  mining  transactions  this  phrase  has  a  fixed  meaning,  and  it  was 
sought  to  place  a  construction  upon  it  by  reason  of  usage  among  people 
engaged  in  mining  transactions.  I  held  at  the  beginning  of  the  trial 
that  I  could  not  properly  consider  evidence  of  that  character  because  of 
the  fact  that  the  contention  was  not  properly  raised  in  the  pleadings. 
It  may  be  conceded  that  the  phrase  "net  proceeds"  as  it  stands  is  open 
to  more  than  one  necessarily  exclusive  interpretation.  The  meaning  to 
be  attributed  to  the  phrase  depends  in  my  opinion  upon  what  is  to  be 
regarded  as  the  subject  of  the  transaction  which  is  dealt  with  in  that 
clause.  Mr.  R.  M.  Macdonald  contends  that  the  transaction  is  a  trans- 
action which  begins  with  the  taking  of  the  ore  from  the  mine.  The 
plaintiffs  on  the  other  hand  contend  that  the  transaction  to  which  it  relates 
is  a  transaction  which  begins  with  the  shipment  of  the  ore  on  the  railway. 
In  the  one  case  of  course,  if  Mr.  Macdonald's  contention  were  correct, 
the  net  proceeds  would  be  arrived  at  by  deducting  the  cost  of  mining  as 
well  as  the  other  elements  to  which  I  have  referred;  in  the  other  case 
it  is  of  course  obvious  that  the  phrase  imports  the  deduction  of  the  cost 
of  transportation  and  smelting  only. 

Where  in  a  written  instrument  you  have  language  which  is  capable 
of  more  than  one  exclusive  interpretation  it  is  always  desirable,  for  the 
purpose  of  ascertaining  which  of  the  different  possible  interpretations 
most  probably  agrees  with  the  intention  of  the  parties,  to  look  at  the 


from  the  earth  and  before  it  was  sub- 
jected to  the  smelting  process.  The 
defendants  clearly  did  not  contract 
nor  did  they  intend  to  contract  upon 
an  assay  made  of  the  ore  containing  the 
silver  metal  before  it  was  smelted,  but 
they  contracted  upon  the  basis  of  the 
product  resulting  from  the  smelting 
process." 

In  Toombs  v.  Consolidated  Poe  Min. 
Co.,  15  Nev.  444,  3  Mor.  Min.  Eep.  210, 
in     settlement     for     extra     work     done 


by  plaintiff  in  the  building  of  a  quartz 
mill  for  defendant  and  in  consideration 
of  a  conveyance  by  plaintiff  to  defendant 
of  his  interest  in  the  mill,  defendant 
agreed  to  pay  plaintiff  a  certain  sum 
out  of  the  first  net  proceeds  of  crushing 
and  reducing  ores  to  gold  and  silver  in 
said  mill.  It  was  admitted  that  there 
had  been  no  proceeds  and  in  determining 
this  fact  the  court  evidently  took  into 
consideration  the  entire  expenses  of  min- 
ing as  well  as  of  reduction. 


1906]  Geobe  v.  Doyle.  667 

circumstances  surrounding  the  execution  of  the  instrument.  I  do  not  of 
course  mean  that  you  are  to  consider  discussions  which  preceded  the  exe- 
cution of  the  instrument,  or  negotiations,  as  affording  direct  evidence  of 
such  intention ;  but  you  are  to  look  at  the  situation  of  the  parties,  the 
nature  of  the  subject-matter,  the  course  of  dealing  between  the  parties, 
and  the  general  course  of  dealing  in  the  business  to  which  the  transaction 
relates  so  far  as  known  to  the  parties  at  the  time,  together  with  the  lan- 
guage of  the  instrument  for  the  purpose  of  ascertaining  what  the  parties 
had  in  view  as  the  object  of  the  transaction  and  what  provisions  they 
would  most  likely  agree  to  for  the  purpose  of  reaching  that  object. 

The  plaintiffs  were  the  owners  of  this  property.  They  lived  in 
Kootenay.  The  defendant  came  from  Chicago,  having,  so  far  as  the  evi- 
dence shows,  no  interests  of  any  kind  whatever  in  this  country.  The 
plaintiffs,  through  lack  of  means,  were  unable  to  proceed  with  the  devel- 
opment of  their  property  and  their  policy,  upon  which  they  were  all  in 
agreement,  was  that  they  should  attempt  to  sell ;  and  these  facts  were  per- 
fectly well  known  to  the  defendant.  The  plaintiffs  entered  into  the  trans- 
action with  a  view  of  selling  the  property  to  the  defendant,  or,  failing 
that,  the  procuring  of  such  development  of  the  property  as  would  exhibit 
its  character  to  possible  future  purchase  rs. 

The  agreement  was  entered  into  on  the  13th  of  March,  1905.  The 
first  payment  the  agreement  provides  for  was  to  be  made  on  the  15th  of 
September,  1905.  The  defendant  acquired  the  right  of  immediate  pos- 
session and  the  right  to  proceed  immediately  to  work  and  ship  ore  from 
the  property.  The  defendant  entered  into  no  obligation  to  work  or  develop 
the  property.  The  obligations  which  he  entered  into  were  purely  con- 
ditional ;  in  the  event  of  ore  being  shipped,  then  the  proceeds  were  to  be 
paid  as  I  have  mentioned ;  in  the  event  of  work  being  done,  in  so  far  as 
development  work  at  any  rate  was  concerned,  it  was  subject  to  certain 
conditions,  and  the  obligation  to  observe  these  conditions  was  the  only 
obligation  into  which  he  entered.  Mr.  Macdonald  contends  that  in  these 
circumstances  we  must  take  it  from  the  language  of  the  agreement  read  as 
a  whole  that  the  arrangement  at  which  the  parties  arrived  was  this :  the 
defendant  acquired  the  right  to  extract  ore  from  the  property;  that  the 
ore  when  extracted  became  the  property  of  the  defendant  subject  only 
to  this,  with  respect  to  any  ore  which  should  be  shipped  to  a  smelter  the 
net  proceeds  should  be  deposited  in  the  bank  according  to  clause  7;  that 
in  ascertaining  the  net  proceeds  the  defendant  should  be  entitled  to  deduct 
the  cost  of  mining  as  well  as  the  cost  of  conversion  of  the  ore,  and  fur- 
ther, that  this  privilege  of  extracting  ore  and  shipping  it  from  the  prop- 
erty subject  to  this  condition  came  into  effect  immediately  upon  the 
execution  of  the  instrument  six  months  before  the  date  when  by  the 


668  Water  and  Mineral  Cases.     [British  Columbia 

terms  of  the  agreement  the  defendant  would  be  called  upon  to  make  up 
his  mind  whether  he  should  act  upon  his  option  of  purchase  by  making 
the  first  payment,  or  abandon  it.  It  seems  to  me  that  it  is  a  most  unlikely 
thing  that  an  agreement  of  that  character  would  have  been  entered  into 
by  these  parties  in  the  circumstances.  There  is,  as  T  have  pointed  out, 
nothing  in  the  agreement  which  obligates  the  defendant  to  deal  in  any 
particular  manner  with  the  ore  extracted  from  the  mine.  If  it  be  true 
that  the  agreement  conferred  upon  the  defendant  the  right  of  property 
in  the  ore  subject  only  to  his  liability  to  account  for  the  net  proceeds 
in  case  of  there  being  any,  then  the  plaintiffs  placed  themselves  in  such 
a  position  that  they  had  absolutely  no  protection,  no  kind  of  security 
whatever  (except  the  bare  personal  covenant  of  the  defendant)  that 
the  provisions  of  clause  7  would  be  observed.  Is  it  to  be  supposed  that 
these  plaintiffs  deliberately  placed  this  defendant  in  a  position  in  which, 
during  the  six  months  preceding  the  date  fixed  for  the  first  payment, 
he  would  have  absolutely  untrammelled  control  over  the  disposition  of 
ore  extracted  by  him  from  the  properties  during  that  period  subject 
only  to  his  liability  to  account  for  these  proceeds?  It  is  perfectly  obvious 
that  if  the  construction  contended  for  be  the  true  construction,  the  defend- 
ant acquired  under  the  agreement  the  right  to  hold  the  ore  extracted 
until  after  the  lapse  of  his  rights  under  the  agreement  and  then  proceed 
with  the  conversion  of  it.  In  such  case  it  is  not  easy  to  see  what  would  be 
the  plaintiffs'  remedy  if  the  defendant  should  be  minded  to  act  dis- 
honestly. Having  regard  to  the  situation  of  the  parties  I  cannot  believe 
that  the  plaintiffs  deliberately  placed  themselves  in  such  a  position.  It 
is  strongly  contended  by  Mr.  R.  M.  Macdonald  that  the  language 
employed  in  this  part  of  the  agreement  conferring  upon  the  defendant 
the  right  to  work  the  property  imports  in  its  natural  meaning  the  right 
to  appropriate  to  his  personal  benefit,  and  as  his  property,  the  ore 
extracted  from  the  property.  In  my  opinion  that  is  not  the  necessary 
meaning  of  the  language  employed,  and  reading  that  part  of  the  agree- 
ment with  clause  7,  and  in  the  light  of  the  circumstances,  I  have  come 
to  the  conclusion  that  that  is  not  its  meaning.  The  true  view  is,  I  think, 
this :  the  defendant's  rights  in  respect  of  the  ore  extracted  from  the 
property  were  limited  to  the  right  to  ship  the  ore  for  the  purpose  of 
conversion,  and  were  subject  to  the  condition  that  the  proceeds  of 
such  conversion  should  be  applied  in  accordance  with  the  terms  contained 
in  clause  7.  Pending  the  payment  of  the  purchase  price  provided  for  in 
the  agreement  the  defendant  in  my  opinion  acquired  no  right  of  prop- 
erty in  the  ore  in  situ  and  none  after  extraction  from  the  mine. 

The  operation  of  developing  the  property  was,  pending  the  payment  of 
the  purchase  price,  to  be  done  by  the  defendant  for  the  owners  of  the 
property,  and  in  shipping  or  dealing  with  the  ore  he  was  to  deal  with  it 


1906] 


Gkobe  v.  Doyle.  669 


as  a  trustee  for  the  plaintiffs,  and  the  proceeds  in  his  hands  would  be 
in  his  hands  as  such  trustee.  If  this  view  be  correct  very  little  difficulty 
meets  us  respecting  the  construction  of  the  phrase  "net  proceeds. 
That  the  plaintiffs  should  agree  that  their  property,  through  the  mere 
process  of  conversion  into  cash,  should  as  to  the  greater  part  of  the  pro- 
ceeds become  the  property  of  the  defendant,  is  altogether  too  violent  a 

supposition. 

Apart  altogether  from  these  considerations  there  are  considerations 
arising  out  of  the  language  of  clause  7  itself  which  appear  to  me  to  be 
conclusive      I  have  no  doubt  that  the  clause  was  adopted  for  the  pro- 
tection of  the  plaintiffs,  not,  as  Mr.  Macdonald  strongly  argues,  merely 
as  a  regulation  to  serve  the  convenience  of  both  parties  to  the  contract. 
I  apprehend  that  there  can  be  no  doubt  that  as  a  measure  of  protection 
such  a  clause  would  be  quite  useless  unless  the  sums  required  to  be 
deposited   should  be   sums   readily  capable   of  ascertainment.     Now   if 
the  sums  were  to  be  ascertained  in  the  manner  contended  for  by  Mr. 
Macdonald,  not  onlv  are  they  not  readily  capable  of  ascertainment,  but  the 
plaintiffs  would  be  in  such  case  entirely  at  the  mercy  of  the  defendant 
as  to  whether  they  should  be  ascertained  at  all  except  by  means  of  legal 
proceedings.    There  is  nothing  in  the  agreement  requiring  the  defendant 
to  keep  any  accounts  by  which  the  cost  of  mining  particular  shipments 
of  ore  could  be  determined;  there  is  nothing  requiring  him  to  submit 
his  books  for  the  inspection  of  the  plaintiffs  nor  to  supply  the  plaintiff 
with  any  information  whatever  which  would  enable  them  in  any  particular 
case  to  arrive  at  the  extent  of  preliminary  ascertainment  of  this  cost; 
it  is  obvious  that  as  a  protection  to  the  plaintiffs  it  is  quite  useless. 
Now  when  we  look  at  the  structure  of  the  clause  itself  we  find  that 
what  it  deals  with  is  "ore  shipped,"  or  rather  the  net  proceeds  of  ore 
shipped    not  the  net  proceeds  of  the  working  of  the  properties,  nor  the 
net  proceeds  of  ore  mined  from  the  properties,  but  the  net  proceeds  of 
ore  shipped.     Moreover  the  clause  obviously  refers  only  to  ore  shipped 
for  conversion,  that  is,  ore  shipped  from  the  property  to  a  mill  or  smelter 
for  conversion.    The  language  is,  I  apprehend,  quite  clearly  open  to  this 
construction,  namely,  that  the  transaction  dealt  with  by  the  clause  is  the 
conversion  of  the  ore  at  the  place  of  conversion;  and  that  the  deductions 
which  the  parties  had  in  mind  are  the  deductions  which  in  the  ordinary 
course  of  business   would  be  made  at  the  smelter;   these   deductions, 
according  to  the  evidence,  including  freight  and  smelting  charges.    All  the 
considerations  which  I  have  mentioned  lead  me  to  the  conclusion  that 
this  is  the  construction  which  should  be  adopted.    The  view  I  suggested 
during  the  course  of  the  argument,  namely,  that  the  deductions  should 
include  the  cost  of  transportation  from  the  mine  to  the  railway,  is  open 


670  Water  and  Mineral  Cases.     [British  Columbia 

to  some  of  the  objections  to  the  construction  contended  for  by  Mr. 
Macdonald ;  in  that  case  the  sum  required  to  be  deposited  would  not  be  a 
fixed  and  ascertained  sum,  and  moreover  would  not  be  capable  of  ascer- 
tainment except  by  means  of  an  account  based  upon  information  in  the 
possession  of  the  defendant,  which,  under  the  terms  of  the  agreement, 
the  defendant  is  not  bound  to  give  to  the  plaintiff's,  and  the  accuracy  of 
which  the  plaintiffs  would  have  no  means  of  testing  if  given. 

There  remains  the  question  of  waiver.  The  evidence  of  the  plaintiff 
Grobe  satisfies  me  that  nothing  has  occurred  which  would  justify  me  in 
coming  to  the  conclusion  that  the  right  to  cancel  the  agreement  in  con- 
sequence of  the  breaches  which  are  complained  of  and  which  have  been 
proved  did  occur.  And  with  regard  to  the  plaintiff  Graham,  about 
whose  rights  I  had  some  doubt  in  respect  to  the  question  as  to  whether 
or  not  he  had  waived  his  rights  of  cancellation,  Mr.  Taylor  has  satisfied 
me  that  in  the  circumstances  of  this  case  the  payments  made  on  the  1st 
of  June  and  the  ist  of  July  have  not  the  effect  which  Mr.  Macdonald 
contends.  It  remains  only  to  refer  to  the  fact  that  the  shipping  clause 
in  the  agreement  between  Graham  and  the  defendant  is  slightly  different 
in  its  phraseology  from  that  in  the  agreement  to  which  I  have  just 
referred.  The  change  in  the  language,  however,  is  not  substantial,  and  all 
the  observations  which  I  have  made  regarding  the  other  agreement 
apply  to  Graham's  agreement.  The  plaintiffs  are  entitled  to  a  declaration 
that  the  defendant's  rights  under  the  agreement  have  been  forfeited, 
and  to  an  order  directing  the  payment  of  the  moneys  in  question  in  the 
action  in  accordance  with  their  respective  interests. 


1910] 


Attobney-General  v.  Dominion  Coax.  Co. 


671 


ATTORNEY-GENERAL  v.  DOMINION  COAL  CO. 

[Supreme  Court  of  Nova  Scotia,  1910.] 
44   Nova   Scotia  423. 

Mines Coal  Leases — Nova  Scotia — Powers  of  Mining  Commissioners. 

Where  by  Act  of  Legislature  (Act  of  1908,  c.  11)  the  power  was  withdrawn  from 
the  commissioner  of  mines  to  receive  applications  for  leases  of  areas  situated  within 
a  specified  territory,  and,  in  view  of  confusion  and  difficulties  which  had  arisen 
with  respect  to  the  boundaries  of  leases  within  said  territory,  a  survey  was  ordered, 
the  court  declined  to  make  a  declaration  that  there  was  vacant  in  the  territory 
specified  not  covered  by  existing  leases  and  open  to  application  by  the  relator,  or 
that  defendant's  lease  exceeded  the  statutory  limit. 

Per  Meagher,  J.  (Townshend,  C.  J.,  concurring).  Where  a  discretion  is  given  to 
the  court  it  will  not  be  exercised  where  the  result  would  be  embarrassing. 

Per  Kussell,  J.  (in  the  judgment  appealed  from).  A  statutory  power  in  respect 
to  leases  of  crown  lands  must  be  strictly  exercised. 

This  was  an  action  brought  by  the  Attorney-General  of  Nova  Scotia 
on  the  relation  of  J.  Sydney  Burchell  against  the  defendant  company  to 
vacate  a  certain  lease  of  coal  granted  to  defendant  by  the  Province  of 
Nova  Scotia,  or  in  the  alternative  for  a  declaration  that  the  relator  was 
entitled  to  have  issued  to  him  certain  coal  mining  leases  applied  for  by 
him  on  April  2d,  1907,  and  an  injunction  and  other  relief,  etc. 

The  facts  are  set  out  at  length  in  the  judgments. 

The  cause  now  comes  up  on  appeal  from  the  following  judgment  of 
RUSSELL,  J.: 

The  relator  is  claiming  that  a  lease,  No.  430,  issued  to  the  defendant 
company,  is  void,  because  it  contains  more  than  one  square  mile,  and 
because  the  Crown  was  misled  by  the  representations  that  the  area 
applied  for  and  so  granted  contained  only  one  square  mile. 


NOTE. 

Powers  of  Commissioner  as  to 
Licenses  and   Leases. 

The  commissioner  of  mines  has  only 
the  powers  conferred  on  him  by  statute 
and  has  no  jurisdiction  to  enforce  equi- 
ties entirely  outside  of  the  statutory 
proceedings.  In  re  McColl,  22  Nova 
Scotia  17;  Mott  v.  Lockhart,  8  A.  C. 
568. 

The  powers  of  the  commissioner  with 


respect  to  prospecting  licenses  are  simply 
to  decide  whether  he  will  grant  the 
license  or  not.  In  re  Malaga  Barrens,  21 
Nova  Scotia  391. 

Upon  application  for  lands  already 
under  lease  the  commissioner  has  no 
power  to  cancel  the  former  leases  as 
irregularly  or  improperly  issued.  In 
re  McColl,  22  Nova  Scotia  17. 

It  would  seem  that  after  the  commis- 
sioner of  mines  has  granted  prosecuting 
licenses     he     cannot,     upon     subsequent 


672 


"Water  and  Mineral  Cases.         [Nova  Scotia 


The  defendant  company  claims  that  the  area  contains  only  or  less 
than  a  square  mile,  and  that  even  if  it  should  be  found  to  contain  more, 
the  only  consequence  would  be  that  a  larger  rental  should  be  paid  as 
provided  by  chapter  18,  section  211,  sub-section  2.  I  do  not  so  read  the 
sub-section  referred  to.  Section  190  provides  that  the  commissioner  may 
issue  a  lease  covering  one  square  mile,  but  that  if,  on  investigation,  it  is 
shown  that  such  an  area  is  not  sufficient  to  make  a  profitable  mine  the 
Governor-in-Council  may  authorize  the  issue  of  a  lease  covering  a  larger 
tract.  The  purpose  of  section  211  was,  I  think,  merely  to  provide  that, 
in  such  a  case,  the  lessee  should  pay  an  additional  rental  for  the  additional 
area,  that  is  to  provide  for  the  case  of  an  area  properly  granted  of  larger 
size  than  one  square  mile  and  not  for  the  case  of  such  area  granted 
without  the  requisite  authorization  by  the  Governor-in-Council.  The 
provision  is  not  "if  the  land  is  granted  without  the  authority  of  the 
Governor-in-Council,"  but  "if  the  land  covered  by  the  lease  exceeds  the 
tract  or  ground  which  such  lease  under  the  provisions  of  this  chapter  may 
without  the  authority  of  the  Governor-in-Council  cover,"  that  is  to  say, 
if  the  land  exceeds  one  square  mile  and  an  order  in  council  has  been 
made  authorizing  the  enlarged  area.  The  reading  contended  for  by  the 
defendant  would  dispense  altogether  with  the  necessity  of  any  authoriza- 
tion by  the  Governor-in-Council. 

Whether  the  lease,  if  containing  more  than  one  square  mile,  is  void 
altogether,  or  void  only  for  the  excess,  is  a  more  difficult  question.  In 
The  Queen  v.  Hughes,  L.  R.,  1  P.  C,  Lord  Chelmsford  says :  "In  the 
present  case  a  statutory  power  is  given  to  the  governor  to  be  exercised 
over  the  Crown  lands.  This  power  must  be  strictly  pursued.  The 
leases  which  he  is  authorized  to  make  are  limited  to  the  extent  of  eighty 
acres.  This  quantity  is  said  to  be  exceeded  in  the  leases  in  question;  if 
so,  1hey  are  altogether  void."  Defendant's  counsel  says  that  this  is 
merely  an  assumption  of  Lord  Chelmsford  for  the  purposes  of  the  appeal. 
It  may  be  so  as  to  the  fact  that  the  leases  contained  more  than  eighty 
acres,  but  it  is  certainly  the  expression  of  a  judicial  opinion  that  if  they 


applications  for  licenses  involving  the 
same  areas,  hold  an  investigation  and 
determine  the  regularity  of  the  original 
license.  In  re  Malaga  Barrens,  21  Nova 
Scotia  391. 

The  fact  that  an  application  for  a 
license  to  search  conflicts  with  a  pre- 
vious application  -will  not  invalidate 
either  the  application  or  the  subsequent 
lease  if  at  the  time  of  the  granting  of 
the  lease  the  first  application  has  expired 


without  having  been  acted  upon.  Field- 
ing v.  Mott,  18  Nova  Scotia  339. 

The  commissioner  may  be  compelled 
by  mandamus  to  decide  on  an  application 
for  a  lease.  Drysdale  v.  Dominion  Coal 
Co.,  34  Can.  Sup.  Ct.  326. 

In  Nova  Scotia  prior  to  the  Act  of 
April  30,  1892,  the  commissioner  had 
no  authority  to  accept  any  application 
for  an  area  while  a  previous  application 
is    subsisting.     Under   the   statute    men- 


1910]  Attorney-General  v.  Dominion  Coal  Co.  6<3 

did  so  they  were  void.  In  the  present  case  I  do  not  see  how,  if  the  lease 
contains  more  than  a  square  mile,  I  can  determine  for  which  part  it  is 
good  and  at  what  part  I  am  to  locate  the  excess  as  to  which  it  is  void.  If 
it  is  for  more  than  one  square  mile,  it  would  seem  from  the  observations 
of  Lord  Chelmsford  in  the  case  referred  to  that  I  should  have  to  declare 
it  void.  There  are  analogous  cases  in  our  own  court  or  cases  possessing 
more  or  less  similar  features  to  this,  which  have  been  cited  on  both  sides 
of  the  question.  They  are  cited  in  briefs  that  have  been  supplied  to  me, 
and  the  authority  of  the  late  Judges,  Ritchie,  E.  J.,  and  Ritchie,  J.,  seem  to 
favor  the  view  that  the  lease  is  void,  while  that  of  the  late  Sir  John 
Thompson  seems  to  bear  the  other  way.  The  result  is  such  at  all  events 
as  to  compel  me  to  enter  upon  the  inquiry  whether  the  lease  in  question 
does  or  does  not  contain  more  than  a  square  mile. 

But  it  is  necessary  first  to  deal  with  a  contention  that  the  lease  describes 
nothing  at  all ;  that  at  the  end  of  the  second  course  the  description  merely 
returns  upon  itself  and  describes  two  lines  enclosing  no  space.  This 
results  from  an  adherence  to  the  letter  of  the  description  which  is  as 

follows: 

"Beginning  at  an  iron  post  on  the  shore  of  Cape  Breton  Island  at 
high  water  mark  near  the  entrance  to  Little  Bras  d'Or,  said  post  being 
the  south-western  angle  of  an  area  this  day  applied  for  as  a  substitute 
for  the  southern  portion  of  a  former  lease,  No.  41,  Renewal  No.  51 ; 
thence  north  sixty-eight  degrees  east  by  the  southern  boundary  of  afore- 
said lease,  and  a  continuation  thereof,  to  the  south-eastern  corner  of 
Lease  No.  110,  now  held  by  the  Dominion  Coal  Company,  Limited; 
thence  southerly  to  the  north-east  corner  of  an  area  this  day  applied  for 
as  a  substitute  for  former  lease  No.  58,  Renewal  No.  64,  held  by  the 
Dominion  Coal  Company,  Limited;  thence  westerly  following  by  the 
northern  boundary  of  said  lease  No.  64-58  to  high  water  mark  on  the 
shore  aforesaid;  thence  northerly  following  by  the  windings  of  the  shore 
at  high  water  mark  to  the  place  of  beginning." 

date  applications  in  due  form  made  in 
accordance  with  the  statute  governing 
land  which  has  been  proclaimed.  Be- 
fore applications  are  required  to  be  in 
the  form  required  for  gold  districts, 
it  is  necessary  that  areas  shall  have  been 
laid  off  in  a  particular  way  and  of  a 
particular  size,  and  a  plan  prepared  with 
the  areas  as  laid  off  distinctly  marked 
thereon.  Attorney  General  v.  MacDon- 
ald,  8  Nova  Scotia  125. 


tioned,  however,  the  commissioner  is 
left  free  to  receive  all  applications  which 
are  made  in  due  form  for  the  same  area. 
McColl  v.  Ross,  28  Nova   Scotia   1. 

It  is  not  necessary  that  a  district  shall 
have  been  proclaimed  in  order  that  a  lease 
may  be  granted  under  the  Nova  Scotia 
statute,  Rev.  St.  4th  series,  c.  9.  Mott 
v.  Lockhart,  8  App.  Cas.  P.  C.  568; 
Fielding  v.  Mott,  18  Nova  Scotia  339. 

The  fact  that  territory  has  been  pro- 
claimed a  gold  district  does  not  invali- 
W.   &  M.— 43 


674  Water  and  Mineral  Cases.         [Nova  Scotia 

It  is  said  that  lease  No.  64-58  is  bounded  northerly  on  the  leases 
colored  yellow,  blue  and  something  between  pink  and  yellow,  which  I  am 
told  is  salmon  color,  on  the  plan  used  by  me  at  the  trial.  This  is  true  of 
the  original  lease  64-58,  and  reading  the  description  as  if  it  referred  to 
this  original  lease  it  encloses  nothing.  But  there  was  a  lease  issued  as 
a  substitute  for  the  former  lease  58,  renewal  No.  64,  as  shown  by  this 
very  description,  and  if  the  words  "said  lease"  in  the  description  are 
read  "said  substituted  lease"  the  difficulty  vanishes.  The  Southern 
boundary  of  lease  430  is  the  northern  boundary  of  the  area  colored  pink 
in  the  plan  used  at  the  trial.  To  locate  the  northern  boundary  is  a  much 
more  difficult  task.  It  is  the  southwest  angle  of  an  area  applied  for  as 
a  substitute  for  the  southern  portion  of  a  former  lease  41,  renewal  51, 
that  is  the  lease  colored  yellow  on  the  plan  used  at  the  trial.  That  is  to 
say,  the  iron  post  from  which  the  description  starts  is  said  to  be  the 
south-western  angle  of  such  area,  and  of  course  there  is  a  question  which 
it  is  not  very  easy  to  answer,  whether  the  iron  post  being  a  visible 
monument  is  to  be  taken  as  the  starting  point,  or  whether  it  is  possibly 
a  mere  falsa  demonstratio,  a  point  selected  because  it  is  assumed  to  be  the 
southwestern  angle  of  the  substituted  lease  so  that  the  angle  aforesaid, 
if  it  does  not  correspond  with  the  iron  post  must,  nevertheless,  be  taken 
as  the  true  starting  point.  I  understood  the  plaintiff's  contention  to  be 
that  the  starting  point  was  the  point  "F"  on  the  plan,  but  even  if  the 
iron  post  which  is  at  the  point  "G"  on  the  plan  were  taken  as  the  begin- 
ning of  the  description,  the  lease  would  be  found  to  contain  more  than 
a  square  mile.  Whether  it  does  or  does  not  contain  this  excessive  quan- 
tity depends  upon  the  way  in  which  the  leases  north  and  south  of  the  area 
in  question  are  located,  and  the  evidence  touching  this  matter  is  of  extreme 
intricacy.  It  would  serve  no  useful  purpose  to  analyse  it  or  to  explain 
it  at  length.  The  fact  is  that  there  are  so  many  ways  in  which  it  may 
happen  that  the  correct  application  of  the  description  to  the  ground  will 
produce  an  area  less  than  one  square  mile,  that  it  is  impossible,  I  think, 
for  the  plaintiff  to  make  out  a  demonstration  of  the  contrary  such  as 
his  case  calls  for. 

I  have  said  that  the  iron  post  is  assumed  to  mark  the  southwestern 
angle  of  a  lease  applied  for  in  substitution  for  a  portion  of  a  former 
lease.  This  last  mentioned  lease  is  the  one  colored  yellow  on  the  plan 
and  numbered  thereon  12-51-41.  Its  third  course,  which  is  south  6 
degrees  east  1 1 1  chains,  is  supposed  to  come  to  a  point  east  of  Little  Bras 
d'Or.  The  course  and  distance  so  described  do  not,  as  the  plaintiff  plats 
them,  come  anywhere  near  Little  Bras  d'Or.  On  the  contrary  when  the 
fourth  course  is  drawn  of  ninety  chains  parallel  to  the  shore,  still  in  a 
southerly  direction,  if  drawn  in  such  a  way  as  simply  to  reproduce  the 


1910]  Attokney-Genekal  v.  Dominion  Coal  Co.  675 

line  of  the  shore  a  distance  of  ten  miles  therefrom,  as  I  understand  plain- 
tiffs to  contend  that  it  should  be,  it  still  fails  to  reach  Little  Bras  d'Or, 
and  even  if  this  course  is  drawn  in  a  straight  line  ninety  chains  long, 
instead  of  following  "the  sinuosities  of  the  coast,"  it  does  not  go  as  far 
as  the  preceding  course  was  supposed  to  carry  by  those  who  drew  the 
plan  attached  to  the  original  lease. 

The  descriptions  in  the  substituted  leases  are  almost  as  great  a  puzzle. 
For  the  southern  portion  of  the  lease  an  area  is  substituted  beginning 
near  the  extreme  end  of  Point  Aconi  as  shown  by  an  iron  post  marking 
the  southeast  corner  of  the  lease  on  the  same  day  applied  for  as  a  sub- 
stitute for  the  northern  portion  of  the  former  lease,  thence  southerly  in 
continuation  of  the  eastern  boundary  or  the  aforesaid  substituted  area 
on  a  course  south  six  degrees  east,  crossing  Point  Aconi.  The  continua- 
tion of  the  eastern  boundary  of  the  said  substituted  area  would  not  go  any- 
where near  the  course  south  six  degrees  east.  It  would  run  inland.  It 
is  described  as  going  sixty-two  chains,  more  or  less,  to  a  point  distant 
twelve  chains  from  an  iron  post  set  at  high  water  mark  on  the  shore, 
measured  therefrom  in  a  course  bearing  north  sixty-eight  degrees  east, 
said  point  being  fixed  to  correspond  with  the  southeast  corner  of  area 
formerly  leased  under  No.  51-41,  as  shown  on  the  plans  in  the  office  of 
the  Commissioner  of  Mines  at  Halifax.  This  iron  post  is  the  same 
already  referred  to  as  the  starting  point  of  lease  No.  430,  and  if  it  does 
actually  mark  the  southwest  corner  of  the  former  lease  12-5 1-41,  there 
does  not  seem  to  be  much  difficulty  in  the  case.  Lease  430,  the  one  in 
question,  is  described  as  running  from  this  iron  post  sixty-eight  degrees 
east  by  the  southern  boundary  of  the  substituted  lease.  This  substituted 
lease  has  a  southern  boundary  identical  with  that  of  the  original  lease,  and 
the  two  leases  to  the  east  of  it  have  their  southern  boundaries  in  the 
line.  The  area  which  the  description  covers  would  therefore  properly 
be  represented  on  the  plan  by  the  letters  "G,"  "H,"  "I,"  "J,"  and  Mr. 
McKenzie,  the  plaintiff's  surveyor,  says  that  this  figure  encloses  a  space 
somewhat  less  than  one  square  mile. 

The  plaintiff  is  seeking  to  establish  a  southern  boundary  for  the  areas 
colored  yellow,  blue  and  salmon  color,  running  from  a  point  north  of 
the  mouth  of  Little  Bras  d'Or.  This  is  in  plain  contradiction  of  some 
of  the  essential  terms  of  the  descriptions.  The  description  of  lease  No. 
41,  the  original  lease  of  the  area  colored  yellow  on  the  plan  used  at  the 
trial,  requires,  as  already  stated,  that  the  third  course  should  carry  to  a 
point  ten  chains  east  of  the  shore  between  the  mouth  of  the  Little  Bras 
d'Or  and  Big  Pond.  That  is  clearly  to  a  point  south  of  the  entrance  of 
Little  Bras  d'Or.  It  may  well  be  that  1 1 1  chains,  the  fixed  length  of  the 
course,  will  not  carry  to  that  point,  and  it  may  be  impossible  to  define 


676  Water  and  Mineral  Cases.         [Nova  Scotia 

the  precise  point  to  which  it  will  carry,  or  the  precise  point  to  which  this 
course,  if  the  distance  be  ignored,  should  be  held  to  carry.  But  if  it  goes 
anywhere  near  Little  Bras  d'Or  the  addition  of  the  ninety  chains  required 
for  the  fourth  course  will  carry  far  to  the  south  of  the  point  "F"  which 
plaintiffs  have  indicated  on  their  plan  as  the  southern  boundary  of  the 
lease.  The  substituted  lease,  No.  427,  the  southwest  angle  of  which  is  the 
starting  point  of  lease  No.  430,  is  described  as  having  a  southern  boun- 
dary identical  with  that  of  the  original  lease  41.  That  is,  the  southeast 
corner  is  the  same,  and  the  course  being  the  same  the  southwest  corner 
must  of  necessity  be  also  identical.  The  other  leases  to  the  east  are  all 
"tied  in"  to  the  lease  No.  41,  and  while  it  may  be  difficult,  and  to  me  is 
impossible,  to  say  where  the  southern  boundary  of  these  leases  should 
be  drawn,  the  plaintiff  has  not  proved,  and  I  think  cannot  prove,  that 
they  are  not  far  enough  to  the  southward  to  reduce  the  area  between 
those  boundaries  and  the  figure  colored  pink  on  the  plan  to  less  than 
one  square  mile.  If  this  be  so,  it  is  not  necessary  to  deal  with  the  evi- 
dence as  to  the  leases  on  the  other  side  of  the  area  in  question,  as  to 
which  the  evidence  is  that  they  may  be  so  plotted  as  to  push  the  northern 
boundary  of  the  lease  colored  pink  six  chains  further  north  than  it  is 
drawn  on  the  plan,  which  would  in  itself  reduce  the  area  of  No.  430  below 
one  square  mile.  I  do  not  say  whether  this  manner  of  plotting  them  is 
correct  or  not,  nor  do  I  find  it  necessary  to  determine  that  question, 
because  I  am  satisfied  from  what  has  been  said  with  reference  to  the 
areas  on  the  north  of  the  area  in  question,  that  the  plaintiffs  have  not 
proved  that  No.  430  exceeds  the  statutory  limit. 

As  to  the  contention  that  there  is  vacant  space,  and  that  the  plaintiffs 
are  entitled  to  a  declaration  to  that  effect,  I  incline  to  the  view  that  I 
cannot  enter  upon  that  inquiry.  It  was  a  matter  for  the  Commissioner 
of  Works  and  Mines  and  could  only  come  before  this  court  on  appeal 
from  his  refusal  to  grant  a  lease.  But  if  this  is  not  the  correct  view  of  the 
law  I  think  also  that  the  true  northern  boundary  of  the  defendant  com- 
pany's lease  No.  430  is  the  southern  boundary  of  the  three  leases  colored 
yellow,  blue  and  salmon  color  on  the  plan,  and  that  there  is  no  vacant 
space  for  which  a  lease  could  have  been  made  to  the  relator. 

Trie  relator  is,  I  think,  entitled  to  have  the  defendant's  leases  Nos.  429 
and  430  declared  to  be  subject  to  the  clause  191  (a)  of  the  chapter  as 
amended  by  chapter  32  of  the  Acts  of  1907,  §  2. 

1909,  January  18th.  H.  Mellish,  K.  C,  W.  B.  A.  Ritchie,  K.  C,  and  C. 
J.  Burchell,  in  support  of  appeal. 

H.  A.  Lovett,  K.  C,  and  L.  A.  Lovett,  contra. 

1909,  November  27th.  TOWNSHEND,  C.  J.  On  the  argument  of  this 
appeal  several  questions  of  importance  were  discussed,  but  in  view  of 


1910]  Attorney-General  v.  Dominion  Coal  Co.  677 

chapter  n,  Acts  of  1908,  it  seems  to  me  unnecessary  to  express  the 
conclusions  at  which  I  have  arrived.  By  that  act  it  is  provided  that: 
"Notwithstanding  any  of  the  provisions  of  the  Mines  Act  or  any  amend- 
ment thereto,  the  Commissioner  of  Public  Works  and  Mines  shall  refuse 
any  application  for  a  coal  mining  lease,  or  license  to  search  of  or  over 
any  submarine  area  or  tract  of  ground  comprised  within  the  territory 
*  *  *  (describing  the  locus  in  question)  *  *  *  "and  shall  refuse  to  grant 
a  lease  of  any  area  or  tract  of  ground  comprised  within  said  territory, 
notwithstanding  any  application  for  lease  thereof  heretobefore  made,  or 
any  existing  license  to  search." 
Section  2  further  provides  that : 

"The  Commissioner  of  Public  Works  and  Mines  shall  cause  to  be  made 
all  surveys,  investigations  and  inquiries  necessary  to  determine  the  loca- 
tion and  boundaries  of  any  or  all  leases  heretofore  issued  of  areas  or 
tracts  of  ground  comprised  within  the  territory  mentioned  in  the  next 
preceding  section." 

The  purpose  of  this  suit  is  to  have  a  declaration  made  by  the  Court 
that  there  is  vacant  land  in  such  territory  available  for  leasing. 

Apart  altogether  from  the  question  of  the  right  of  the  Attorney- 
General  to  bring  this  action ,  and  apart  from  the  question  of  the  want  of 
jurisdiction  in  this  court  to  determine  disputes  left  by  the  legislature 
as  contended,  to  the  Commissioner  of  Public  Works  and  Mines  only,* 
and  apart  from  the  question  whether  there  is  vacant  land  in  the  terri- 
tory, it  seems  to  me  both  inexpedient  and  useless  to  make  such  a 
declaration.  The  Legislature  has,  by  special  act,  withdrawn  from  the 
commissioner  the  power  to  receive  any  application  for  areas  within  this 
territory,  or  to  grant  any  licenses  or  leases.  Further,  in  view  of  the 
confusion  and  difficulties  which  have  arisen  in  connection  with  the 
boundaries  and  titles  of  the  present  leases,  and  to  prevent  further  con- 
fusion, in  addition  to  forbidding  any  licenses  or  leases,  the  Legislature 
has  directed  the  commissioner  to  have  the  whole  territory  surveyed  and 
examined,  no  doubt  with  a  view  of  rectifying,  as  far  as  possible,  the 
errors  which  have  led  to  all  this  trouble. 

For  this  reason  alone,  without  expressing  any  opinion  on  the  other 
points,  I  think  it  inadvisable  and  inexpedient,  under  the  circumstances, 
to  make  the  declaration  asked  for,  and  I  am  of  opinion  the  appeal 
should  be  dismissed. 

At  the  argument  it  was  suggested  that  the  Royal  Trust  Company 
should  be  added  as  defendants,  and  on  application  this  was  subsequently 
done.  That  company  appeared  and  pleaded,  and  relies  on  the  same 
defenses  as  the  Dominion  Coal  Company.    Counsel  agreed  that  the  same, 


G?8  Water  and  Mineral  Cases.        [Nova  Scotia 

evidence  should  be  used,  and  that  no  more  should  be  taken  and  that  no 
further  argument  was  desired. 

I  concur  also  generally  in  the  opinion  of  MEAGHER,  J. 

GRAHAM,  E.  J.  By  the  Mines  Act,  Revised  Statutes  of  Nova  Scotia, 
c.  18,  §  191,  it  is  provided  that: 

"A  lease  may  cover  (a)  for  the  purpose  of  coal  or  iron,  a  tract  of 
ground  not  exceeding  one  square  mile,  and  not  exceeding  two  miles  in 
length." 

Then  sub-section  2  provides  that  a  lease  for  a  larger  area,  after  an  inves- 
tigation and  under  special  circumstances  and  when  authorized  by  the 
Governor-in-Council  and  imposing  conditions,  may  be  issued  by  the 
Commissioner  of  Mines,  but  not  exceeding  double  the  extent  or  double 
the  length  already  mentioned,  except  in  a  case  not  necessary  to  con- 
sider. 

When  in  1869  lease  12-5 1-41  was  obtained  by  Ross  &  Moore  and  ulti- 
mately renewed  to  the  defendant  on  August  25,  1906,  the  statute  was 
practically  the  same  as  now,  except  that  the  length  (I  refer  to  the  ordi- 
nary lease)  "should  not  exceed  two  and  one-half  miles."  R.  S.,  3d 
Series,  c.  25,  §§  92,  93,  97,  99. 

The  size  of  the  area  leased  is  important  in  view  of  the  public  revenue. 
The  price  fixed  by  the  Act  for  the  lease  and  the  annual  rental  (sections 
189  and  211)  are  so  much  for  a  square  mile. 

In  my  opinion  a  lease  exceeding  the  area  of  one  square  mile  is  void 
as  against  the  Crown,  and  subject  to  attack  by  the  Crown  on  that  ground. 
There  are  at  least  three  utterances  of  the  Privy  Council  to  that  effect. 
Rex  v.  Clark,  7  Moore,  P.  C,  77;  Queen  v.  Hughes,  L.  R.  1  P.  C.,  at 
page  92.  "In  the  present  case  a  statutory  power,"  etc.,  and  Williams 
v.  Morgan,  13  A.  C,  239.  "The  court  below,"  etc.  The  substance  of  the 
statutory  provision  in  that  case  is  given  by  Lord  Watson's  judgment  in 
Osborne  v.  Morgan,  13  A.  C.  232,  viz.,  "It  is  thereby  made  lawful  for  the 
Governor  to  grant  to  any  person  a  lease  of  Crown  Lands  for  mining  pur- 
poses not  exceeding  twenty-five  acres  for  any  term  not  exceeding,  etc." 
As  to  the  Crown's  remedy  I  also  refer  to  p.  234,  "it  does  not  seem,  etc." 

The  case  of  Fielding  v.  Mott,  18  N.  S.  R.,  347,  14  S.  C.  R.,  254,  and 
Osborne  v.  Morgan,  13  A.  C,  277,  were  cases  where  the  Attorney- 
General  was  not  a  party.  The  Crown  was  not  attacking  the  instrument 
and  a  private  party  was  seeking  to  attack  them  collaterally  by  a  pro- 
ceeding against  his  rival.  In  Osborne  v.  Morgan,  at  page  234,  Lord 
Watson  said : 

"It  does  not  seem  to  admit  of  doubt  that  the  Crown  would  have  a 
good  title  to  challenge  the  validity  of  these  two  leases  upon  the  first 
ground  advanced  by  the  appellants  either  by  means  of  a  writ  of  intrusion 


1910]  Attokney-Genekal  v.  Dominion  Coal  Co.  679 

or  by  an  information  in  chancery.  *  *  *  But  the  appellants  assert  their 
right  to  terminate  the  leases  and  to  dispossess  the  lessees  not  only  with- 
out the  aid  but  against  the  wish  of  the  Crown." 

And  he  goes  on  to  show  the  inconvenience  of  that  being  allowed  to 
take  place. 

I  refer  also  to  the  decision  In  re  Ovens,  23  N.  S.  R.  376,  and  In  re 
Wier,  31  N.  S.  R.  103,  where  Townshend,  J.,  points  out  the  distinction, 
citing  Osborne  v.  Morgan. 

It  is  true  that  Thompson,  J.,  in  the  judgment  in  Fielding  v.  Mott,  18 
N.  S.  R.,  347,  dealing  with  a  similar  point  in  the  case  of  a  gold  lease, 
among  several  other  points  and  without  hearing  counsel  for  the  defend- 
ant, seemed  to  be  of  the  opinion  that  such  a  provision  was  directory  only. 
Now  while  the  Supreme  Court  of  Canada  affirmed  that  judgment  it  cannot 
be  inferred,  although  it  is  so  stated  in  the  reporter's  note,  that  they  sup- 
ported that  position  only  upon  that  ground.  I  think  in  Osborne  v. 
Morgan,  the  real  ground  is  shown.  The  weight  of  authority,  I  refer  to 
the  Privy  Council  decisions,  is  against  the  view  that  such  a  statutory 
provision  would  be  directory  merely. 

In  respect  to  section  211  (2)  of  the  Mines  Act,  as  affecting  the  conten- 
tion just  dealt  with,  I  agree  with  the  judge  appealed  from  in  the  con- 
struction of  that  section  and  that  it  does  not  impliedly  permit  larger 
areas  than  one  square  mile.  It  is  awkwardly  expressed,  but  it  is  framed 
to  avoid  repeating  the  various  sizes  of  areas  permitted  for  the  ordinary 
leases  of  the  various  minerals  as  mentioned  in  section  191  (1).  It 
means  "If  the  land  covered  by  any  lease  exceeds  the  tract  of  ground 
which,  under  the  provisions  of  this  chapter,  such  lease  may  without  the 
authority  of  the  Governor-in-Council  cover,"  that  is  one  square  mile 
in  the  case  of  coal  or  such  other  area  for  other  minerals,  referring  to 
those  special  leases  of  greater  areas  provided  for  under  section  191 
(2),  "the  lessee  shall"  pay  accordingly. 

The  point  which  I  have  endeavored  to  make  assists,  I  think,  the 
plaintiff's  contention  as  to  the  construction  of  the  description  of  the 
lease  12-51-41.  It  did  not  go  as  far  south  as  defendants  contend  for, 
or  it  would  have  been  void  for  excessive  dimensions. 

The  locality  of  the  southern  boundary  line  of  that  lease  is  the  turn- 
ing point  of  the  case,  because  its  southern  boundary  line  determines 
where  the  southern  boundary  line  of  the  adjacent  lease  13-52-42  immedi- 
ately to  the  east,  and  of  lease  110  next  adjacent  to  the  east  of  that,  lies.  It 
is  all  one  continuous  line.  It  is  contended  that  to  the  southward  of  that 
group  of  leases  the  Crown  has  vacant  space,  and  that  the  lease  430 
claimed  by  defendant  to. adjoin  these  leases  on  their  south,  if  it  covers 
the  space,  also  exceeds  the  statutory  limit  of  one  square  mile. 


680  "Water  and  Mineral  Cases.         [Nova  Scotia 

I  should  have  mentioned  while  referring  to  the  locality  of  lease  12- 
51-41,  that  it  was  surrendered,  and  that  the  area  was  covered  by  fresh 
leases,  426  and  427.  On  the  17th  December,  1906,  it  and  two  other 
leases  along  the  shore,  probably  in  anticipation  of  coming  events,  namely 
legislation  to  which  I  shall  have  to  refer  later,  were  surrendered  and 
four  fresh  leases  were  taken  in  their  places,  namely  leases  426,  427, 
429  and  430.  The  area  was  held  under  application  until  May  5, 
1907,  when  these  leases  were  registered.  The  object,  of  course,  was 
to  rearrange  the  size  of  the  leases  in  order  to  make  all  the  leases  fit  the 
Procrustes  bed  of  the  statute,  and  no  objection  can  be  made  to  that.  But 
while  the  precaution  was  taken  in  respect  to  the  leases  touching  the 
shore,  a  precaution  was  not  taken  in  respect  to  lease  13-52-42,  and 
lease  no,  just  beyond  (seaward)  which,  as  I  said,  have  a  southern  line 
no  further  to  the  south  than  the  old  lease  12-5 1-41  had,  and  to  move  these 
further  south  with  it.  For  it  is  contended  that  the  iron  post  which  now 
indicates  the  southern  boundary  of  lease  427  and  the  northern  boundary 
of  lease  430  is  further  to  the  south  than  the  southern  line  of  the  old 
lease  12-51-41.  And  that  leaves  vacant  land  between  leases  13-52-42  and 
no  and  lease  430,  and  if  that  lease  430  covers  the  space  it  has  an 
excessive  area. 

Where  was  the  southern  boundary  line  of  lease  12-51-41? 

The  description  of  the  old  lease  12-51-41  is  as  follows: 

"Beginning  on  the  shore  of  Boulardarie  Island,  near  Table  Rock,  at 
the  northern  boundary  line  of  John  Stubbart's  farm  lot;  thence  north 
20  degrees  east  (in  1885)  20  chains;  thence  north  68  degrees  east  94 
chains;  thence  south  6  degrees  east  n  chains,  to  a  point  distant  10 
chains  east  of  the  shore  between  the  mouth  of  the  Little  Bras  d'Or 
entrance  and  Big  Pond ;  thence  southerly  parallel  to  the  shore  90  chains ; 
thence  south  68  degrees  west  12  chains  to  the  shore ;  thence  by  the  shore 
at  high  water  mark  northerly,  westerly  and  easterly,  crossing  the  mouth 
of  the  Little  Bras  d'Or  entrance  at  the  bar  round  Point  Aconi  to  the 
place  of  beginning,  containing  one  square  mile, — in  manner  and  form 
as  in  the  said  area  is  specified  and  delineated  upon  the  plan  hereto 
annexed." 

Page  6,  Book  of  Lease  plans. 

The  plan  attached  to  this  lease  marked  exhibit  M-86  is  exhibit  M-106. 
Table  Rock  is  well  known,  and  the  intersection  of  the  shore  and  the 
northern  boundary  line  of  John  Stubbart's  farm,  are  established  beyond 
dispute  in  this  case.  It  is  at  the  in  chains  course  that  the  difficulty 
begins.  It  is  to  end  at  a  point  10  chains  east  of  the  shore  between  the 
mouth  of  Little  Bras  d'Or  entrance  and  Big  Pond.  And  the  plan 
attached  so  shows  it.     The  next  course  is  to  continue  still  southerly  90 


1910]  Attoeney-Geneeal  v.  Dominion  Coal  Co.  681 

chains,  then  in  returning  along  the  shore  the  line  purports  to  cross  the 
"mouth  of  the  Little  Bras  d'Or  entrance  at  the  bar." 

Unfortunately,  the  "mouth  of  the  Little  Bras  d'Or  entrance"  and 
"the  bar"  are  in  fact  about  a  mile  further  to  the  south  than  they  are 
represented  to  be  on  this  plan  annexed  to  the  lease.  The  distance 
between  two  points  on  the  plan,  Point  Aconi  and  Alder  Point,  as 
scaled  on  the  plan  is  64  chains,  while  the  actual  distance  between  those 
two  points  is  one  hundred  and  forty  chains. 

The  "ill  chains"  call,  according  to  the  description  and  the  plan, 
takes  one  to  the  south  of  the  latitude  of  the  mouth  of  the  Little  Bras 
d'Or  entrance,  and  he  still  must  go  southerly  (parallel  to  the  shore  too) 
90  chains,  which  would  make  the  area  a  mile  longer  than  the  statute 
permits  and  greatly  to  exceed  the  statutory  area  of  a  square  mile. 

The  defendants'  theory  is  not,  however,  that.  That  is  too  obvious  a 
reductio  ad  absurdnm.  They  assent  to  the  terminus  of  the  "in  chains" 
being  placed  at  a  point  by  measurement  on  the  ground  very  near  to  the 
place  where  the  plaintiff  puts  it,  very  far  short  of  the  latitude  of  the 
mouth  of  the  Little  Bras  d'Or,  and  there  commence  with  the  "90 
chain"  call.  Thence  by  going  in  a  straight  direct  line,  not  "parallel 
to  the  shore"  and  by  going  94  chains  instead  of  90,  they  manage  to  cross 
the  mouth  of  the  Bras  d'Or  entrance  (and  reach  the  present  iron  post)  at 
the  sacrifice  of  everything  else. 

This  theory  rejects  the  delineation  of  the  area  upon  the  plan  and 
would  place  the  "natural  monument,"  the  mouth  of  the  Bras  d'Or 
entrance,  at  least  90  chains  south  of  its  locality  as  represented  on  the 
plan. 

It  is  evident  that  something  in  this  description  must  be  rejected.  Both 
sides  admit  that.  But  what?  In  my  opinion  the  reference  to  the 
mouth  of  the  Bras  d'Or  entrance  and  the  Bar  must  be  eliminated.  This 
I  know  is  rejecting  what  is  usually  called  a  natural  monument  in  favor 
of  dimensions  and  quantity,  but  I  shall  deal  with  the  authorities  presently. 

The  intention  of  the  parties  is  an  important  element. 

It  is  not  contended  that  the  Department  of  Mines  or  any  of  the  officials 
of  the  Government  ever,  before  the  lease  was  issued,  made  an  actual 
survey  of  this  area  embraced  in  lease  12-5 1-41.  No  one  appears  to 
have  surveyed  along  the  whole  length  of  the  shore.  Mr.  Hall,  the  clerk 
from  the  department,  says,  page  75 : 

"Q.  You  grant  coal  leases  sometimes  without  a  survey?  A.  Oh, 
yes,  very  often. 

Q.     That  is  the  usual  practice?     A.    Yes. 

Q.  Surveys  are  not  made  with  regard  to  submarine  areas  ever?  A. 
None  that  I  ever  knew,  no. 


682  Water  and  Mineral  Cases.        [Nova  Scotia 

Q.  Have  you  any  surveys  on  file  in  the  Mines  Office  of  any  lease 
now  held  by  the  Dominion  Coal  Co.  in  that  district?  A.  Not  that  I  am 
aware  of. 

Q.     You  would  know  if  they  had?    A.    I  would. 

Q.  Did  the  Mines  Department  ever  place  any  monuments  for  locat- 
ing leases  ?     A.     I  could  not  say,  not  that  I  know  of. 

Q.  You  are  familiar  with  the  descriptions  in  those  leases,  426,  427, 
429  and  430?  A.  Yes,  the  first  I  knew  of  the  monuments  was  when 
they  were  made  reference  to  in  the  description. 

Q.  You  haven't  done  anything  to  locate  the  correctness  of  these 
monuments  ?     A.     No. 

O.     Or  to  ascertain  that  they  were  monuments?     A.     No." 

See  also  page  81,  line  30. 

Mr.  W.  R.  McKenzie,  the  crown  land  surveyor,  says,  in  respect  to  the 
plan  annexed  to  the  lease  in  question,  page  21 : 

Q.  What  do  you  say  as  to  the  plan  attached  to  exhibit  M-n  (12- 
51-41)?  A.  It  shows  the  shore  line  very  incorrectly,  inaccurately.  All 
the  point  is  shown  with  scarcely  any  resemblance  to  the  real  shore  line. 

Q.  Alder  Point  is  the  headland  shown  on  plan  M-78?  A.  Yes,  the 
shore  line  from  about  three-quarters  of  a  mile  to  the  south  of  Point  Aconi 
is  shown  with  scarcely  any  resemblance  to  the  real  shore  line.  The  whole 
shore  line  is  inaccurate,  but  the  balance  northerly  and  westerly  shows  a 
greater  degree  of  accuracy,  although  not  correct.  I  should  say  that  the 
portion  of  this  plan  M-n  showing  Point  Aconi  and  westerly  from  Point 
Aconi,  has  been  made  from  a  rough  survey  along  the  shore. 
The  balance  of  the  shore  along  Alder  Point  around  south  is  merely  a 
very  rough  and  inaccurate  sketch." 

In  the  American  cases  which  are  frequently  cited  in  such  a  dispute  the 
greatest  importance  is  attached  to  this  feature,  namely,  the  preliminary 
survey  which  takes  place  in  respect  to  government  grants.  That  is  so 
with  us  too.  Because  when  the  court  is  struggling  with  repugnant  calls 
in  a  grant  it  knows  that  the  Deputy  Crown  Land  Surveyor  and  pro- 
bably the  other  party  were  over  the  ground  locating  the  grant.  And  if 
in  the  grant  a  line  purports  to  cross  a  river  or  to  touch  any  other  natural 
mounment,  that  of  course  is  of  the  greatest  importance.  One  knows  that 
the  surveyor  was  actually  there.  But  in  respect  to  these  coal  leases  we 
have  not  that  feature.  The  Crown's  agents  were  not  present.  The  appli- 
cant in  a  hurry  is  doing  the  best  he  can  from  memory,  or  from  some  no 
doubt  imperfect  map  of  the  shore  of  the  country. 

I  suppose  that  the  words  "mouth  of  the  Little  Bras  d'Or"  would  not 
have  been  included  in  the  description  at  all,  but  it  was  conjectured  that 
the  measurements  might  take  the  lessee  that'  far  and  then  if  the  expres- 


1910]  Attorney-General  v.  Dominion  Coal  Co.  683 

sion  "thence  by  the  shore"  was  followed  it  would  take  him  in  along  the 
shore  of  the  Little  Bras  d'Or  and  out  of  the  way,  so  a  crossing  had  to 
be  provided  for. 

Natural  monuments  are  preferred  to  courses  and  distances  by  the  courts 
because  it  is  supposed  that  the  parties  made  their  instrument  of  grant  in 
view  of  the  premises  and  were  more  likely  to  have  made  a  mistake  in 
their  courses  and  distances  than  in  respect  to  a  natural  monument.  But 
if  no  one  was  ever  there,  surveying  the  area,  that  rule  with  its  reason 
fails.    The  American  judges  sometimes  designate  these  as  "random  calls." 

Then  there  has  been  no  possession  of  this  submarine  area,  except,  of 
course,  by  the  Crown. 

Here,  I  think,  it  may  be  said  that  dimensions  are  of  the  essence  of  the 
instrument.  The  area  must  not,  as  I  have  already  intimated,  exceed 
2.Y2  miles  in  length  and  one  square  mile  in  extent,  or  the  lease  will  be 
void.  By  crossing  the  waters  I  have  mentioned  both  the  dimensions  and 
the  contents  will  be  exceeded.  I  think  that  the  Attorney-General  has  not 
lost  that  argument  merely  because  the  defendant  company  has  recently 
rearranged  the  leases  to  cover  the  area,  and  the  practical  difficulty  of  the 
dilemma  has  thus  been  obviated.  Had  that  expedient  not  been  resorted 
to,  no  one  would  be  now  urging  the  plaintiff's  contention  louder  than  the 
defendants. 

There  is  another  ground  for  the  exception  to  the  rule  prevailing  in 
connection  with  the  mines.  I  shall  have  to  refer  to  the  official  map  in 
the  mines  office  presently.  The  applicant  comes  in  with  a  description 
beginning  at  someone's  lease,  then  running  (course)  two  and  a  half  miles 
to  a  tree  or  a  rock  marked  D,  or  other  monument.  The  commissioner 
has  no  trees  or  rocks  on  his  map,  but  he  plots  it  out  by  scaling  two  and 
a  half  miles.  The  distance  to  the  trees  may  be  actually  three  miles  (for- 
bidden by  statute)  and  the  area  over  a  square  mile.  Which  ought  to 
govern  in  such  a  case? 

Coming  to  authorities  in  Cowen  v.  Trifitt  (1899),  2  Ch.  311, 
Lindley,  M.  R.,  said : 

"I  must,  however,  protest  against  the  way  in  which  the  doctrine  was 
stated  by  the  appellant's  counsel,  that  the  maxim  Falsa  demonstratio  non 
nocet  only  applies  where  there  is  some  incorrect  description  at  the  end 
of  the  sentence.  That  is  whittling  away  the  doctrine  and  making  it 
ridiculous.  It  is  a  misapprehension.  I  do  not  know  that  the  principle 
can  be  better  put  than  it  is  in  Jarman  on  Wills,  5th  Ed.,  749,  where  it  is 
said  the  rule  means  that  where  the  description  is  made  up  of  more  than 
one  part,  and  one  part  is  true  but  the  other  is  false,  then  if  the  part 
which  is  true  describe  the  subject  with  sufficient  legal  certainty  the 
untrue  part  will  be  rejected  and  will  not  vitiate  the  devise." 


684  Water  and  Mineral  Cases.        [Nova  Scotia 

In  Mellor  v.  Walmesley  (1905),  2  Ch.  164,  there  was  a  conveyance  of 
land  and  the  dimensions  were  stated  in  the  conveyance  and  marked  on  a 
plan,  and  the  land  was  stated  to  be,  though  it  was  not  so  on  the  plan  nor 
according  to  the  dimensions,  "bounded  on  the  west  by  the  seashore."  It 
was  held  that  the  latter  words  must  be  rejected. 

Vaughan  Williams,  L.  J.,  p.  174,  said: 

"I  cannot,  however,  agree  with  the  learned  judge  that  the  present 
case  is  one  in  which  the  undoubted  rule  that  when  you  have  in  the  words 
of  the  description  a  sufficiently  certain  definition  of  what  is  conveyed, 
inaccuracy  of  dimensions  or  of  plans  as  delineated  will  not  vitiate  or 
affect  that  which  is  there  sufficiently  defined,  applies,  because  the  descrip- 
tion itself  is  a  description  of  a  piece  of  land  situate  on  the  seashore  of 
certain  dimensions  which  are  set  forth.  Those  dimensions  in  my  opinion 
are  not  an  addition  to  something  which  has  already  been  certainly 
described,  but  are  part  and  parcel  of  the  description  itself.  The  words 
are  not  an  inaccurate  statement  of  a  quality  of  that  which  has  already 
been  certainly  described  or  defined,  but  are  part  or  parcel  of  that  descrip- 
tion or  definition.  The  dimensions  in  this  case,  to  use  the  words  appearing 
on  page  247  of  Sheppard's  Touchstone,  are  an  essential  part  of  the 
description  and  not  a  cumulative  description  in  a  case  in  which  there 
is  in  the  first  place  a  sufficient  certainty  and  demonstration." 

In  4  Eng.  &  Am.  Ency.  Law,  286,  it  is  said : 

"Courses  and  distances  control  incidental  calls  for  monuments,  except 
where  there  is  a  clear  intention  shown  to  make  such  calls  locative;  and 
they  also  control  indefinite  and  conflicting  calls  for  monuments.  They 
govern  where  surrounding  circumstances  show  them  to  be  more  reliable 
or  where  such  is  the  intention  of  the  parties,  or  where  monuments  are 
called  for  by  conjecture  and  not  by  actually  running  out  the  lines  upon 
the  ground  according  to  rule.  Sometimes  a  fixed  and  visible  monument 
is  controlled  by  course  and  distance.  The  doctrine  that  monuments  con- 
trol courses  and  distances  is  never  followed  where  to  do  so  would  lead 
to  an  absurdity  or  where  they  are  inconsistent  with  the  meaning  of  a 
deed  and  adhering  to  them  would  defeat  the  grant." 

In  Buffalo  Ry.  Co.  v.  Stigler,  61  N.  Y.  348,  the  Court  of  Appeals  of 
New  York  said: 

"The  reason  of  the  rule  is  said  to  be  that  conveyances  are  supposed 
to  be  made  with  an  actual  view  of  the  premises  by  the  parties.  Hence 
courses  and  distances  must  be  varied  to  conform  to  actual  or  ascertained 
objects  or  fixed  boundaries  designated  or  referred  to  by  them.  But  when 
it  appears  from  the  designation  of  quantity,  or  other  elements  of  descrip- 
tion that  the  courses  and  distances  from  a  fixed  and  determined  line 
were  intended  to  control  monuments  then  the  latter  should  be  disregarded. 


1910]  Attorney-General  v.  Dominion  Coal  Co.  685 

The  intention  of  the  parties  as  evidenced  by  the  deed  is  in  all  cases  to 
determine  the  location  of  the  premises  granted  by  it." 

In  Tuxedo  Park  v.  Sterling,  60  N.  Y.  App.  Div.  352,  it  is  said  by  the 
court : 

"But  as  an  exception  to  the  above  general  rule,  it  has  been  held  that 
where  the  courses  and  distances  are  right  in  themselves  they  will  prevail 
against  monuments  so  as  to  carry  out  the  intent  of  the  parties.  Higin- 
botham  v.  Stoddard,  72  N.  Y.  94;  Townsend  v.  Hoyt,  51  N.  Y.  656. 
Where  the  courses  and  distances  are  to  form  a  fixed  line  or  to  enclose 
a  fixed  quantity  they  will  control  natural  monuments." 

The  reporter's  note  to  White  v.  Luning,  93  U.  S.  514,  is  as  follows: 

"The  rule  that  monuments,  natural  or  artificial,  rather  than  courses 
and  distances,  control  in  the  construction  of  a  conveyance  of  real  estate, 
will  not  be  enforced  when  the  instrument  would  be  thereby  defeated, 
and  when  the  rejection  for  a  call  for  a  monument  would  reconcile  other 
parts  of  the  description  and  leave  enough  to  identify  the  land." 

There  is  another  subsidiary  consideration.  As  I  have  intimated,  the 
defendant  company,  in  order  to  cross  the  waters  mentioned  in  the  descrip- 
tion, has  to  go  in  a  straight  and  direct  line  southwardly  from  the  term- 
inus of  the  110  chains  call,  whereas  the  course  in  the  description  of  the 
lease  is  "thence  southerly  parallel  to  the  shore  90  chains."  And  it  is 
said  that  the  word  "parallel"  is  inappropriate  unless  there  is  a  straight 
line,  and  you  must  take  the  general  course  of  the  shore.  For  brevity  I 
refer  to  a  case.  In  Fratt  v.  Woodward,  32  Cal.  573,  (91  Am. 
Dec.  573),  a  case  where  the  words  are  "easterly  parallel"  to  a  river,  the 
court  said: 

"In  Hicks  v.  Coleman,  (25  Cal.  143),  the  land  was  bounded  on  one  side 
by  the  Consumnes  River,  of  which  the  course  was  not  straight  but 
meandering;  and  the  question  was  whether  the  line  upon  the  opposite 
side  and  which  the  deed  described  as  parallel  to  the  river,  was  to  be  a 
straight  line  parallel  with  the  general  course  of  the  river,  or  a  line  with 
the  same  windings  or  courses  as  the  river.  We  said  'we  think  the  plain 
construction  of  the  call  of  the  third  line  is  that  it  is  to  run  parallel  with 
the  river  in  all  its  meanderings  and  not  parallel  with  its  general  course.' 
This  is  the  obvious  import  of  the  term  'parallel  with  the  Consumnes 
River.'  No  other  line  can  be  said  to  be  parallel  with  the  river.  *  *  * 
There  is  no  force  in  the  argument  of  counsel  for  the  appellants  founded 
on  mathematical  definitions.  By  definition  parallel  lines  are  undoubtedly 
straight  lines,  but  in  common  speech  about  boundaries  or  in  a  geographical 
sense  the  words,  as  we  all  know,  are  often  used  to  represent  lines  which 
are  not  straight  but  which  are  the  protographs  of  each  other.  The  term 
is  used   for  the  want  of  a  better  and  not  because  it  in   all   respects 


686  Water  and  Mineral  Cases.         [Nova  Scotia 

fits  the  use  to  which  it  is  applied."  (Then  cases  are  cited.)  "It  is  so 
used  to  avoid  circumlocution,  and  while  such  use  is  not  technically  exact 
it  is  not  obscure,  and  there  is  no  difficulty  in  understanding  what  is 
meant.  Nothing  is  more  common  than  to  speak  of  boundaries  which 
are  not  straight  as  being  parallel." 

By  reference  to  the  plan  annexed  to  this  case  it  will  be  seen  that  this 
90  chains  call  is  not  a  straight  but  a  parallel  line. 

It  will  also  be  seen  on  each  of  the  plans  attached  to  the  leases  of  the 
defendant  company  of  the  same  shore,  and  to  the  southward  of  this 
locality,  namely,  leases  54,  55,  56  and  57,  which  contain  the  expression 
"northerly  parallel  to  the  shore"  that  this  line  is  a  sinuous  line  corre- 
sponding to  the  opposite  line  along  the  shore. 

For  these  reasons  I  think  that  the  south  boundary  line  of  the  leases 
12 — 51 — 41  ar>d  13 — 52 — 42  and  no  extended  no  further  to  the  south 
than  is  shown  on  the  plaintiff's  plan  M — 78,  used  on  the  trial.  And  that 
leaves  vacant  space  to  the  southward  unless  the  space  is  covered  by  lease 
430,  which  I  shall  deal  with  presently. 

The  defendants'  counsel  contends  that  the  defendants'  group  of  leases 
along  the  shore  on  the  other  side  of  the  gap  which  I  have  just  attempted 
to  show  exists,  namely,  leases  54,  55,  56  and  57,  should  all  be  pushed 
farther  to  the  north,  and  that  would  enable  leases  429  and  430  which 
bound  on  them,  to  fill  up  the  gap.  I  am  of  the  opinion  that  those  leases 
are  properly  located  on  the  plan  used  at  the  trial.  They  all  depend  on 
lease  54,  and  54  bounds  on  the  original  lease  to  the  General  Mining 
Association,  No.  2j.  I  think  that  the  point  BB.  on  the  plan  78,  at  that 
corner  of  lease  2y,  is  established  beyond  controversy.  Now  it  appears 
that  in  January,  1886,  lease  27  of  the  General  Mining  Association  was 
replaced  by  two  new  leases,  and  that  notwithstanding  lease  54,  then 
held  by  Peter  Ross,  covered  the  area,  the  General  Mining  Association's 
substituted  lease  took  up  six  chains  further  to  the  north,  overlapping  54. 

Then  when  54  was  renewed  on  August  25,  1886,  by  a  renewal  lease 
60,  it  followed  the  old  description  bounding  on  the  lease  of  the  General 
Mining  Association.  And  the  defendants'  counsel  contends  that  this 
means  the  lease  substituted  for  2j,  which,  as  I  said,  is  six  chains  further 
to  the  north.  I  do  not  agree  with  him.  The  lease  substituted  for  lease 
27  was  simply  void  to  the  extent  which  it  overlapped  lease  54,  then  out- 
standing. That  has  frequently  been  held  in  this  court  in  respect  to  these 
statutory  instruments  under  this  Act.    It  does  not  lie  dormant,  it  is  void. 

The  expression  in  lease  60,  the  renewal  of  lease  54  bounding  it  on  the 
lease  of  the  General  Mining  Association,  means  the  lease  of  that  Associa- 
tion, as  it  existed  in  law,  founded  on  the  foundation  lease  2J.  And, 
therefore,  lease  54—60  is  not  to  be  pushed  six  chains  further  to  the  north. 


1910]  Attorney-General  v.  Dominion  Coal  Co.  687 

He  further  contends  that  all  of  this  group  of  leases  must  be  pushed 
further  to  the  north,  because  the  words  in  them  to  which  I  have  already 
referred  "northerly  parallel  to  the  shore"  mean  the  general  course  of 
the  shore  not  following  its  sinuosities.  And  by  changing  these  to  straight 
lines  the  leases  will  all  be  pushed  further  to  the  north.  That  course 
would  upset  the  plans  annexed  to  those  leases  which  I  said  have  sinuous 
lines  corresponding  to  those  opposite  on  the  shore.  Besides  these  leases 
would  each  exceed  a  square  mile  if  this  mode  of  measurement  was 
adpoted.    Mr.  Risley,  the  engineer,  says,  page  54,  line  20: 

"O.  If  47  chains  (the  width)  were  drawn  at  right  angles  to  the  side 
lines  of  these  leases,  would  the  area  therein  contained  be  more  than  one 
square  mile?    A.    It  would." 

I  have  already  cited  authority  as  to  the  meaning  of  the  words  "northerly 
parallel  to  the  shore"  which  is  against  this  contention. 

This  brings  me  to  lease  430,  which,  it  is  contended  by  the  defendant, 
fills  the  gap  on  the  plan  used  at  the  trial,  but  not  shown  there  because 
the  plaintiff  who  uses  the  plan  contends  that  it  cannot  be  delineated. 
I  have  already  referred  to  a  surrender  of  leases  along  the  shore  and  a 
readjustment  to  meet  the  requirements  of  the  statute  as  to  area.  Leases 
429  and  430  are  substitutes  for  surrendered  leases. 

Lease  64  was  surrendered  because  it  contained  more  than  a  square  mile. 
The  adjoining  lease  207,  a  small  one,  was  surrendered  at  the  same  time. 
And  instead  of  these  leases  429  and  430  were  taken  and  new  descriptions 
were  given  to  them.    Lease  430  has  part  of  429  with  207. 

This  is  the  description  of  lease  430: 

"Beginning  at  an  iron  post  on  the  shore  of  Cape  Breton  Island  at  high 
water  mark,  near  the  entrance  of  Little  Bras  d'Or,  said  post  being  the 
southwestern  angle  of  an  area  this  day  applied  for  as  a  substitute  for  the 
southern  portion  of  a  former  lease  No.  41,  renewal  No.  51,  thence  north 
sixty-eight  degrees  east  by  the  southern  boundary  of  aforesaid  lease,  and 
a  continuation  thereof  to  the  southeastern  corner  of  lease  No.  110,  now 
held  by  the  Dominion  Coal  Company,  Ltd.,  thence  southerly  to  the  north- 
east corner  of  an  area  this  day  applied  for  as  a  substitute  for  former 
lease  No.  58,  renewal  No.  64,  held  by  the  Dominion  Coal  Co.,  Ltd. ;  thence 
westerly  following  by  the  northern  boundary  of  said  lease  No.  64 — 58  to 
high  water  mark  on  the  shore  aforesaid;  thence  northerly  following  by 
the  windings  of  the  shore  at  high  water  mark  to  the  place  of  beginning." 

It  begins  at  the  iron  post  G.  on  the  plan  M — 78,  used  at  the  trial,  at 
the  corner  of  lease  12 — 51 — 41,  thence  along  the  southern  boundary  of 
that  lease  "and  a  continuation  thereof  to  the  southeastern  corner  of  lease 
No.  no." 

In  a  former  part  of  this  opinion  I  have  endeavored  to  establish  the 
locality  of  the  southern  line  of  no,  and  if  that  view  was  correct,  the 


688  Watee  and  Minekal  Cases.         [Nova  Scotia 

"southeastern  corner  of  lease  No.  no"  would  be  at  H.  on  the  plan  M — 78 
used  at  the  trial,  "thence  southerly  to  the  northeast  corner  of  an  area," 
lease  429,  in  fact. 

Now  this  area  would  be  greater  than  a  square  mile.  And  either  430 
is  void  for  excess,  or  something  in  the  description  must  be  rejected.  I 
give  the  defendant  the  benefit  of  the  latter  alternative. 

On  principles  which  I  have  already  mentioned  I  think  that  the  refer- 
ence to  the  "corner  of  lease  No.  no"  in  that  call,  which  is  really  out  at 
sea,  should  be  rejected. 

Then  having  the  course  of  the  north  line  which  is  N.  68  degrees  E., 
and  having  the  locality  of  lease  No.  429  (No.  64 — 58)  the  side  line  of 
which  is  N.  68  degrees  E.  154  chains,  those  side  lines  can  be  closed  by  a 
line  drawn  from  the  south  side  line  at  I.  on  the  plan  M — 78,  used  at  the 
trial,  to  intersect  the  north  side  line  at  a  point  which  will  make  the  con- 
tents of  lease  No.  430,  one  square  mile. 

This  view  will  enable  lease  as  well  as  the  old  lease  12 — 51 — 41,  to  be 
located  without  violating  the  statute  restricting  the  dimensions  of  a  coal 
lease,  and  does  not  require  one  to  declare  lease  430  void  for  exceeding 
those  dimensions.    The  other  alternative  is  that  it  is  void  for  excess. 

At  the  hearing  we  were  reminded  of  the  harshness  of  declaring  a  lease 
void  on  any  such  ground  as  excess  or  restricting  it,  and  it  was  sought 
to  claim  an  equity  against  the  Crown  because  the  map  used  in  the  mines 
office  showed  certain  conditions  when  the  application  for  430  was  made, 
namely,  a  space  not  exceeding  a  square  mile ;  a  sort  of  "we  followed  your 
map"  argument.  This  is  all  the  law  in  the  statute  on  the  subject  of  that 
map  in  respect  to  coal : 

"There  shall  be  kept  in  the  office  of  the  commissioner  maps  of  the 
different  mining  districts  in  the  Province,  on  which  shall  be  delineated 
as  accurately  as  may  be  all  the  areas  or  tracts  of  ground  under  license  or 
lease. 

"(3)  Such  maps  and  plans  shall  be  open  to  the  inspection  of  the 
public." 

This  map  in  practice  commences  with  a  blank  sheet  for  a  district  and 
is  made  up  piecemeal.  After  the  application  for  a  license  or  lease  is 
made,  the  description  is  plotted  up  the  map  by  scaling,  generally  in 
relation  to  some  application  already  plotted.  If  a  survey  on  the  ground 
was  made  by  the  department  for  every  application  the  plan  would  be 
moderately  accurate.  But  even  the  statute  does  not  require  this  I  think, 
and  in  fact  it  is  not  in  many  cases  made.  By  section  205,  in  the  case 
of  an  application  for  a  license  to  search,  the  commissioner  is  to  have  the 
land  surveyed  "when  he  deems  it  necessary"  at  the  expense  of  the  appli- 
cant.   And  by  sections  194,  195,  in  the  case  of  an  application  for  a  lease. 


1910]  Attobney-Genebal  v.  Dominion  Coal  Co.  689 

there  is  to  be  a  survey  when  the  area  is  "selected  from  a  tract"  covered 
by  the  applicant's  previous  license,  generally  a  five  square  mile  area, 
again  at  the  expense  of  the  applicant.  But  in  the  common  case  under 
section  2j,  where  there  is  a  lease  without  any  previous  license,  the  Act 
seems  to  require  no  survey  to  be  made.  At  any  rate  the  applicant  can 
have  the  official  survey  made  under  the  statute  by  paying  for  it.  The 
defendants  had  none  made.  The  description  and  hence  the  way  in  which 
it  is  plotted  on  the  map  are  all  at  the  risk  of  the  applicant. 

As  has  often  been  said  under  this  Act  the  commissioner  has  no  dis- 
cretion, his  action  is  purely  automatic. 

I  have  already  referred  to  the  evidence  of  Mr.  Hall  as  to  the  absence 
of  surveys.     In  respect  to  the  map,  he  says,  page  83 : 

"Q. — This  plan  M — 122  shows  here  leases  427  and  426,  just  take  those 
for  example.  That  plan  was  made  up  about  the  time  their  applications 
were  made  ?  A. — I  fancy  that  part  was  plotted  then.  It  may  have  been 
plotted  before  then.  When  the  applications  for  426  and  427  were  made 
would  be  the  time  when  this  plan  was  plotted. 

"O. — You  plotted  427  then?  A. — Yes,  I  plotted  it  as  near  as  I  could 
from  the  description  contained  in  51 — 41  and  afterwards  checked  the 
applications  of  the  Dominion  Coal  Co.  for  new  leases  with  that  plot  as 
nearly  as  I  could. 

"Q. — This  representation  of  lease  427  is  the  result  of  your  examina- 
tion of  the  previous  plans,  and  of  the  description  furnished  by  Mr.  O'Dell 
of  the  Dominion  Coal  Co.  ?    A. — It  is. 

"Q. — The  boundaries  of  427  as  plotted  by  you  on  this  plan  were  plotted 
by  the  information  you  got  from  the  previous  plans  and  from  the  descrip- 
tion you  got  from  Mr.  ODell  and  from  the  Dominion  Coal  Co.  of  the 
previous  lease?    A. — Yes,   as  nearly  as  I  could  do  it. 

"Q. — These  leases  52 — 42  and  1 10  were  brought  down  to  the  same  base 
line  to  make  the  thing  look  consistent?  A. — Yes,  exactly,  to  make  it 
look  consistent. 

"Q. — What  do  you  use  these  plans  for?  A. — Simply  for  the  location 
of  areas  applied  for  from  time  to  time  under  licenses  to  search,  and  lease. 

"Q. — These  plans  are  not  laid  down  by  actual  survey?    A. — No. 

"Q. — I  suppose  you  know  nothing  as  to  the  accuracy  of  any  of  these 
plans.     A. — No. 

"Q. — I  am  asking  you  as  to  the  location  of  50 — 40  on  plan  M — 122; 
lease  50 — 40  has  a  certain  location  there,  has  it  the  same  location  on  this 
plan  M — D ;  is  there  any  difference  ?    A. — Yes,  there  is  a  difference. 

"Q. — 51 — 40  is  a  renewal  of  40?    A. — Yes. 

"Q. — When  you  get  your  application  you  have  your  description  before 

you?    A. — Yes,  and  then  we  plot  it  down. 
W.  &  M.— 44 


690  Water  and  Mineral  Cases.         [Nova  Scotia 

"Q. This  change  of  location  of  lease  No.  40  on  your  plan  was  made 

when  you  got  the  application  for  renewal?    A. — In  December,  1906,  yes. 

«q. — That  was  the  first  time  it  was  suggested  to  you  that  the  old  map 
was  wrong?  A. — Yes,  that  was  the  first  time.  These  were  the  applica- 
tions made  by  the  Dominion  Coat  Co.  on  December  28,  1906." 

The  map  is  not  the  registry  of  the  several  applications,  licenses  or 
leases  and  the  plans  annexed.  There  is  such  a  registry  kept  in  pursuance 
of  the  statute,  §  104,  but  this  map  is  not  that. 

The  evidence  shows  too  that  the  defendants  relied  upon  their  own 
surveys,  and  that  when  12 — 51 — 41  was  moved  further  south  in  accord- 
ance with  the  application  and  is  now  427,  52 — 42  and  no  which  had  the 
same  base  line  were  on  the  new  map  brought  down  to  the  same  base  line 
"to  make  the  thing  look  consistent." 

In  conclusion,  I  think  there  is  no  equity  against  the  Crown  in  respect 
to  this  map.  The  lessee  too  had  two  chances  here — the  company's  prede- 
cessor when  he  first  took  up  the  area  and  the  company  itself  when  it  sur- 
rendered, as  already  mentioned,  all  of  the  old  leases  along  the  shore 
because  they  were  excessive,  and  took  out  new  ones. 

I  have  come  to  the  conclusion  that  there  is  vacant  land,  viz.,  the  space 
as  shown  on  the  plan  M — 78,  used  on  the  trial,  between  H.  S.  K.  and 
K.  G.,  prolonged  seaward  N.  68  degrees  E.,  and  that  the  space  is  not 
covered  by  lease  430. 

This  brings  me  to  the  point  of  remedy.  If  I  had  come  to  the  conclu- 
sion that  lease  No.  430  was  void  for  excess,  there  would  be  no  difficulty 
about  the  remedy,  viz.,  to  have  the  lease  canceled  because  the  Crown 
had  granted  too  much,  or  because  it  was  a  cloud  on  the  title.  Attorney- 
General  v.  Chambers,  4  De  G.  M.  &  G.  206 ;  Queen  v.  Hughes,  L.  R.  1 
P.  C.  81.  But  it  is  contended  that  the  Attorney-General  cannot  have  a 
suit  for  a  declaratory  judgment  that  there  is  vacant  land  there  without 
having  also  a  cause  of  action,  an  intrusion  or  the  invasion  of  some  right. 
He  may  not  have  to  ask  for  the  ancillary  relief,  but  he  must  have  the 
occasion  for  it,  and  particularly  here  when  under  the  Act  the  commis- 
sioner has  power  to  hold  an  investigation,  and  from  his  decision  an  appeal 
lies  to  this  court.  And  it  is  contended  that  thus  the  case  is  brought 
exactly  within  Barraclough  v.  Brown   (1897),  A.  C.  615. 

I  will  endeavor  to  distinguish  that  case  presently,  but  I  must  go  back 

a  little. 

It  is  evident  that  submarine  areas  can  only  be  worked  by  having  access 
from  the  shore.  If  one  looks  at  plan  M — 122  he  will  see  that  the  person 
or  company  who  has  the  inshore  leases  dominates  the  value  of  the  leases 
outside  if  there  is  no  access  to  the  latter.  The  legislature,  very  late  in 
the  day,  because  it  had  not  reserved  space  for  access  to  those  outside 


1910]  Attorney-General  v.  Dominion  Coal  Co.  691 

areas,  passed  legislation  to  enable  space  through  coal  areas  for  tunnels 
to  be  appropriated  or  taken  compulsorily.  I  refer  to  the  Acts  of  1907, 
c.  32  (N.  S.).  There  is  to  be  a  notice  to  treat,  and  on  refusal  an  appli- 
cation is  to  be  made  to  the  Governor-in-Council,  which  is  constituted  the 
tribunal  for  fixing  the  compensation.  The  application  must  disclose  among 
other  things  the  names  of  the  various  owners  of  the  intervening  areas 
through  which  it  is  proposed  to  tunnel,  and  service  must  be  made  on 
them,  and  so  on.  Now  there  is  provision  for  payment  into  the  supreme 
court  of  the  compensation  which  may  be  awarded  if  (among  other 
cases)  the  applicant  has  reason  to  fear  any  claim  or  incumbrance  affect- 
ing the  title,  to  be  distributed  by  the  court. 

But  in  a  case  like  this  it  is  almost  indispensable  that  the  applicant 
should  find  out  who  his  opponent  happens  to  be. 

I  think  that  in  England  the  question  of  title  to  the  land  taken  under 
such  compulsory  acts  is  not  usually  threshed  out  before  the  tribunal 
which  fixes  the  compensation. 

It  makes  a  great  difference  to  the  person  having  outside  submarine 
areas  whether  in  order  to  reach  those  areas  he  is  simply  to  mine  his  own 
coal,  or  whether  in  whole  or  in  part  he  must  expropriate  and  sit  down 
and  count  the  cost  of  expropriation  prices.  It  makes  a  difference  to  the 
government  revenue  derived  from  royalties  if  the  outside  areas  are  to 
remain  idle  because  access  to  them  by  the  owners  is  cut  off  owing  to  the 
high  price  of  expropriating  space  for  a  tunnel  through  miles  of  the 
inshore  lessees  coal.     There  is  a  public  interest  there. 

The  relator  treating  the  defendants'  application  for  lease  420  or  430 
as  void  for  excess,  or  because  it  did  not  cover  the  area,  put  in,  on  the 
2nd  of  April,  1907,  applications  for  the  space.  On  the  24th  April,  1907, 
the  relator's  solicitor  thus  addressed  the  commissioner: 

"On  April  2nd,  1907,  Mr.  Sydney  Burchell  applied  for  three  leases 
of  coal  on  land  covered  with  water,  situated  between  the  entrance  to 
Little  Bras  d'Or  and  Little  Pond,  in  the  County  of  Cape  Breton.^  Will 
you  kindly  let  us  know  when  we  may  expect  these  leases  to  be  issued, 
as  Mr.  Burchell  requires  them  as  soon  as  possible  in  order  to  commence 
work,  making  a  tunnel  through  them  to  some  outside  areas." 
On  the  30th  April  the  Deputy  Commissioner  replied: 
"In  answer  to  your  letter  of  the  2nd.  inst.,  I  beg  to  say  that  three  appli- 
cations for  leases  which  were  claimed  to  cover  vacant  ground  existing 
between  south  line  of  the  Dominion  Coal  Company's  leases  Nos.  no  and 
52—42  and  another  area  applied  for  by  the  same  company  and  the  north 
line  of  area,  formerly  lease  207,  owned  by  said  company  were  lodged  with 
us  on  April  2nd,  but  they  were  not  recognized  nor  do  I  think  they  can  be 
until  such  time  as  our  plot  of  locality  is  proved  incorrect  and  that  such 
vacancy  actually  exists,  consequently  there  are  no  leases  to  issue." 


692  Water  and  Mineral  Cases.         [Nova  Scotia 

On  the  6th  May,  1907,  lease  430  was  issued,  and  on  the  5th  of  August 
this  action  was  commenced. 

The  seams  of  coal  belong  to  the  King  in  his  right  of  the  government 
of  Nova  Scotia.  The  leases  run  in  his  name.  One  of  the  very  latest 
utterances  of  the  legislature,  Acts  of  1906,  c.  16,  §  2,  enables  the  com- 
missioner in  a  certain  contingency  to  enter  and  take  possession  of,  on 
behalf  of  the  Crown,  the  areas  covered  by  a  lease  "if  it  is  in  the  opinion 
of  the  Governor-in-Council  necessary  or  expedient  in  order  to  preserve 
and  protect  the  property  and  interest  of  His  Majesty  the  King  as  lessor 
of  the  area,  etc." 

It  is  very  old  law  that  the  King  may  sue  in  any  court  he  pleases. 
Chitty  on  the  Prerogatives  of  the  Crown,  244.  It  was  recognized  in  the 
courts  below  in  Ontario  in  Attorney-General  v.  Mercer,  8  App.  Cas.  778, 
P.  C,  an  information  in  chancery  for  the  escheat  of  lands  of  Mercer 
who  died  without  heirs. 

Then  it  is  the  common  law  and  has  been  held  from  time  immemorial 
that  the  prerogative  rights  of  the  Crown  cannot  be  restricted  by  an  Act 
of  Parliament  without  express  words.  Attorney-General  v.  Constable,  4 
Ex.  D.  172. 

Then  as  to  the  Attorney-General's  powers  in  respect  to  proceeding  by 
an  information  and  with  a  relator,  I  refer  to  what  was  said  by  Earl  Hals- 
bury,  then  Lord  Chancellor,  in  the  London  County  Council  v.  The  Attor- 
ney-General (1902),  A.  C.  168,  which,  although  that  case  was  brought  in 
respect  to  the  breach  of  a  statute,  is  quite  applicable  here. 

Where  the  Crown  is  interested,  as  where  its  lessee  is  defending  his 
rights  under  it  against  another  subject,  the  Attorney-General  may  prevent 
that  title  being  decided  in  any  suit  between  subjects,  and  is  entitled  to 
have  it  decided  in  a  proceeding  to  which  the  Crown  is  a  party.  Attorney- 
General  v.  Barker,  L.  R.,  7  Ex.  177,  Lord  Stanley  of  Alderly  v.  Wild 
(1900),  1  Q.  B.  256. 

By  statute  the  Attorney-General  has  the  powers  and  functions  in  Nova 
Scotia  which  the  Attorney-General  of  England  has  in  England.  The 
Judicatures  Rules  of  Nova  Scotia,  Order  I,  rule  1  (as  in  England),  pro- 
vide for  this  proceeding  by  information  calling  it  an  action. 

These  rights  are  not  affected,  because  there  is  another  person  (in 
this  case  the  relator)  who  has  an  interest  and  has  made  applications  for 
licenses  or  leases  under  the  principal  Act.  In  Osborne  v.  Morgan,  13 
A.  C.  237,  Lord  Watson  said: 

"Their  Lordships  do  not  doubt  that  in  cases  where  reasonable  grounds 
can  be  shown  for  interfering  with  the  lessee's  possession  the  Crown  will 
lend  its  assistance  in  terminating  the  lease." 

But  I  venture  to  think  that  the  Attorney-General  at  least  is  not  required 
to  go,  and  there  is  no  provision  for  his  going,  before  the  Commissioner 


1910]  Attobney-Geneeal  v.  Dominion  Coal  Co.  693 

of  Mines  to  have  an  investigation  of  the  legal  rights  of  the  Crown  in  re- 
spect to  mines  under  the  provisions  of  section  20  and  sections  87-93  of  the 
Mines  Act. 

Under  the  Act  the  commissioner  has  two  distinct  functions,  ministerial 
in  respect  to  receiving  applications  for  and  issuing  licenses  and  leases, 
registering  them,  and  so  on,  and  holding  investigations,  judicial  or  quasi 
judicial,  merely  in  aid  of  the  ministerial  powers.  The  investigation  is 
held  in  two  cases,  forfeitures  of  leases,  not  necessary  to  refer  to,  and 
under  section  20,  when  an  investigation  is  demanded  by  an  applicant  where 
the  commissioner  refuses  to  accept  the  application,  or  by  a  licensee  or 
lessee  who  claims  that  another's  application  or  license  or  lease  overlaps 
his  own.  Drysdale  v.  The  Dominion  Coal  Co.,  34  S.  C.  R.  336,  Killam,  J. 
In  the  latter  capacity  besides  the  appeal  the  writ  of  certiorari  has  been 
sent  to  him.  Queen  v.  Church,  23  N.  S.  R.  347 ;  see  also  Australian  Bank 
v.  Willans,  L.  R.,  5  P.  C,  417.  There  has  also  been  mandamus,  Drysdale 
v.  Dominion  Coal  Co.,  34  S.  C.  R.  332,  and  I  suppose  all  the  remedies 
used  by  courts  having  corrective  powers,  as  this  court  has,  may  be  used 
in  respect  to  that  tribunal. 

In  respect  to  the  ministerial  functions  this  court  acts  upon  the  parties 
to  the  contest,  as  in  Fielding  v.  Mott,  18  N.  S.  R.  347 ;  14  S.  C.  R.  254, 
which  was  a  simple  action  of  ejectment  by  a  lessee  to  recover  a  gold  mine 
from  another  lessee.  It  was  not  contended  there  that  the  jurisdiction  of 
the  commissioner  to  investigate  prevented  an  action  of  ejectment. 

The  insufficiency  of  the  investigation  to  deal  with  all  questions  which 
may  come  up  was  shown  in  the  case  of  Mott  v.  Lockhart,  8  A.  C.  572  an 
appeal  from  this  court.  Sir  Arthur  Hobhouse,  for  the  Privy  Council, 
said: 

"They  say  that  the  appellants  stole  a  march  on  them  and  violated  some 
understanding  with  them.  But  if  the  fact  were  so  the  commissioner 
could  pay  no  attention  to  it.  He  is  the  creature  of  the  statute  and  has 
no  jurisdiction  given  him  to  enforce  equities  entirely  outside  of  the 
statutory  proceedings." 

I  desire  also  to  quote  from  a  judgment  of  the  Supreme  Court  of  Canada 
a  case  of  mandamus,  for  there  is  no  appeal  to  that  court  from  this  on  an 
appeal  from  the  commissioner,  which  is  a  reason  in  itself  for  the  view  I 
am  advancing.  In  Drysdale  v.  Dominion  Coal  Co.,  34  S.  C.  C.  332,  Mr. 
Justice  Davies  said : 

"From  the  evidence  before  the  commissioner  it  appeared  that  Murray's 
lease,  granted  some  years  before  the  Dominion  Coal  Co.'s  application 
was  made,  might  overlap  the  lands  applied  for  in  the  latter.  Whether  it 
would  do  so  or  not  depended  largely  upon  the  construction  of  the  lease 
and  other  facts  to  be  determined.    Were  the  posts  and  specific  distances 


694  "Water  and  Mineral  Cases.         [Nova  Scotia 

in  the  description  of  the  lands  leased  to  control,  and  the  reference  to  the 
original  application  for  a  license  to  search  to  be  treated  as  falsa  demon- 
stration or  was  the  latter  line  to  control  the  specific  distances?  These  were 
legal  questions  on  which  the  commissioner,  I  think,  had  no  right  to  pass. 
What  lands  were  legally  covered  by  Murray's  lease  was  a  question  to 
be  determined  afterwards  by  the  court  in  a  proper  action.  No  decision 
of  the  commissioner  could  either  contract  or  expand  the  legal  boundaries 
of  Murray's  lease.  I  conceive,  therefore,  that  the  commissioner  might 
grant  the  Dominion  Coal  Company's  application  subject  to  and  except- 
ing thereout  such  lands  as  might  be  found  and  determined  to  be  in  the 
Murray  lease ;  in  other  words  bounding  it  by  the  lands,  whatever  they 
were,  described  in  the  Murray  lease. 

"Such  a  decision  would  leave  the  respective  claims  of  the  parties  for 
adjudication  by  the  proper  tribunals,"  etc. 

In  that  investigation  there  were  three  different  appeals  to  this  court 
from  the  commissioner,  and  four  decisions  by  him  or  supposed  decis- 
ions, for  the  difficulty  always  was  to  find  out  whether  there  had  been  a 
decision  or  something  less. 

I  refer  to  the  following  cases  in  our  own  court,  two  of  which  went  to 
higher  courts,  to  show  that  this  practice  of  proceeding  by  information 
is  not  unusual  in  the  case  of  disputes  under  the  Mines  Act. 

Attorney-General  v.  McDonald,  2  N.  S.  Dec.  125  ;  The  Queen  v.  Snow, 
3  N.  S.  Dec.  373 ;  Attorney-General  v.  Fraser,  Russell's  Eq.  D.  275,  on 
appeal  3  R.  &  C.  351 ;  Attorney-General  v.  Reynolds,  27  N.  S.  R.  184, 
(1896)  A.  C.  240;  Attorney-General  v.  Sheraton,  28  N.  S.  R.  492;  Attor- 
ney-General v.  Temple,  29  N.  S.  R.  279,  27  S.  C.  C.  355. 

One  of  these,  Attorney-General  v.  Reynolds,  27  N.  S.  R.  184,  on  appeal 
to  the  Judicial  Committee  of  the  Privy  Council,  (1906)  A.  C.  240,  is  in 
point  in  respect  to  this  kind  of  proceeding  by  information,  and  notwith- 
standing that  there  is  in  the  Mines  Act  provision  for  an  investigation 
and  a  decision  by  the  commissioner  with  an  appeal  to  this  court.  Indeed 
in  that  case  there  had  been  an  investigation  before  the  commissioner, 
both  parties  attending,  and  the  decision  of  the  commissioner  was  against 
the  person  who  afterwards  without  appealing  proceeded  by  way  of 
information,  he  being  the  relator  in  that  action  and  he  succeeded  in 
both  courts.  By  reference  to  the  judgment  of  this  court  it  will  be  seen 
that  it  had  been  contended  that  the  decision  of  the  commissioner  on  the 
investigation  constituted  res  ad  judicata.  If  that  contention  was  good  the 
Judicial  Committee  would  have  been  obliged  to  have  decided  the  case 
the  other  way. 

I  also  refer  to  the  case  of  the  Dominion  Coal  Co.,  42  N.  S.  R.  108.  I 
think  that  it  is  going  entirely  too  far  to  say  that  this  court  is  ousted  of 


1910]  Attorney-General  v.  Dominion  Coal  Co.  695 

its  jurisdiction,  that  the  investigation  before  the  commissioner  is  an  exclu- 
sive remedy.    In  Oran  v.  Brearey,  2  Ex.  D.  348,  it  is  said : 

"No  rule  is  better  understood  than  that  the  jurisdiction  of  a  Supreme 
Court  is  not  to  be  ousted,  unless  by  express  language  in,  or  obvious  infer- 
ence from,  some  Act  of  Parliament." 

Suppose  that  the  licensee  or  lessee  complained  about  will  not,  per- 
haps because  he  has  been  long  in  possession,  attend  before  the  commis- 
sioner in  response  to  the  notice.  Then,  for  there  is  no  provision  for 
judgment  by  default,  I  suppose  there  is  to  be  an  ex  parte  investigation,  and 
the  commissioner  decides,  say  adversely,  to  the  person  who  has  not 
attended,  and  grants  the  person  attending  a  license  or  a  lease  over  the 
other's  license  or  lease.  I  have  never  heard  it  disputed  that  the  ordinary 
courts  are  open  to  these  parties  to  proceed  in  respect  to  their  titles. 

But  assuming  that  the  defendants  can  go  behind  the  Attorney-General 
and  contend  that  the  relator  should  have  proceeded  with  an  investigation 
before  the  commissioner  rather  than  by  this  action,  I  think  he  would  be 
met  with  the  difficulty  that  the  commissioner's  powers  are  inadequate  for 
a  case  of  this  description.  The  commissioner's  jurisdiction  is  but  an 
investigation  in  aid  of  his  ministerial  powers.  He  cannot  compel  the 
defendant  to  come  in  and  be  bound  by  the  decision.  The  investigation 
can  only  be  of  the  simplest  character.  It  is  only  for  the  purpose  of  loca- 
tion. He  could  not,  I  think,  set  aside  his  own  de  facto  lease  purporting 
to  cover  the  area,  but  void  for  excess. 

Coming  back  to  this  case,  as  to  the  cause  of  action,  there  is  of  course 
a  peculiarity  in  the  circumstances.  These  are  not  only  submarine  areas, 
but  the  seams  of  coal  are  below  the  surface.  The  defendants  may  not 
require  them  for  half  a  century.  It  is  difficult  to  invite  or  provoke  an 
intrusion  or  threat. 

But  I  think  that  the  Attorney-General  has  a  cause  of  action,  and  also 
that  in  addition  to  the  declaration  consequent  relief  by  injunction  is 
appropriate.  This  need  not  be  set  out  in  the  claim  for  the  declaration 
of  right,  or  claimed,  although  that  has  been  done.  If  it  is  set  out  it  may 
even  be  refused  and  the  declaration  alone  granted.  That  has  happened. 
Order  25,  r.  5,  is  the  same  as  the  English  rule: 

"No  action  or  proceeding  shall  be  open  to  objection  on  the  ground  that 
a  merely  declaratory  judgment  or  order  is  sought  thereby,  and  the  court 
may  make  binding  declarations  of  right  whether  any  consequential  relief 
is  or  could  be  claimed  or  not." 

The  latest  utterance  I  have  seen  upon  that  rule,  and  it  is,  I  think,  at 
variance  with  something  cited  from  single  judges  in  the  case  of  Chapman 
v.  Michaelson  (1909)  1  Ch.  238. 

The  Crown  has  always  had  the  right  to  issue  a  commission  to  hold 


696  Water  and  Mineral  Cases.         [Nova  Scotia 

an  inquest  as  to  the  title  of  the  Crown  to  lands.  Chitty  on  Prerogatives, 
246. 

In  Robertson  on  Civil  Proceedings  of  the  Crown,  238,  it  is  said: 

"Formerly  the  Crown  used  at  times  to  issue  a  commission  for  the 
holding  of  an  inquisition  as  to  the  title  of  the  Crown  to  lands,  in  cases 
where  the  procedure  by  English  information  would  have  been  equally 
available.  The  last  reported  instance  of  this  seems  to  be  R.  v.  Yarbor- 
ough    (1828),  1  Dow.  &  Q.  178,  a  case  as  to  foreshore." 

There  is  a  precedent  of  an  information  at  page  286  used  in  Attorney- 
General  v.  Constable,  4  Ex.  D.  162. 

Without  going  that  far  here  for  a  cause  of  action,  where  the  registry  of 
something  affecting  the  title  is  as  important  as  an  active  intrusion,  surely 
the  Attorney-General  would  have  a  remedy  on  the  ground  that  as  to 
the  mere  excess  shown  on  the  official  plan  and  in  the  records  of  the  leases 
in  the  Department  of  Mines,  there  is  a  cloud  upon  the  title.  I  have 
already  cited  authority  to  show  that  on  that  ground  he  would  have  an 
information  to  cancel  the  whole  grant  in  consequence  of  the  excess.  I 
think  that  an  injunction  to  prevent  the  defendants  from  setting  up  the 
map  and  the  records  would  be  appropriate. 

As  to  Barraclough  v.  Brown  (1897),  A.  C.  615,  which  was  cited,  the 
statute  provided  not  only  for  the  creation  of  the  expenses  sought  to  be 
recovered  in  that  action,  but  it  gave  the  court,  a  court  of  summary  juris- 
diction, exclusive  jurisdiction  for  the  recovery  of  the  expenses.  There 
was  no  common  law  right  to  recover  the  expenses,  and  the  action  was 
to  attempt  to  recover  them  in  the  High  Court  which  had  not  on  that 
account  jurisdiction,  but  it  was  contended  that  although  the  jurisdiction 
failed  still  there  could  be  a  declaration  of  the  right  under  the  rule  just 
cited.  It  was  refused.  That  this  is  so  appears  from  what  Lord  Watson 
said,  page  622 :  "The  right  and  the  remedy  are  given  uno  flatu  and  the 
one  cannot  be  dissociated  from  the  other."  Then  he  says  that  the 
statute  "committed  to  the  Supreme  Court  exclusive  jurisdiction."  And 
Lord  Davy,  page  624,  said : 

"There  is  nothing  whatever  in  the  rule  to  enable  the  court  to  make  a 
declaration  on  a  subject  as  to  which  its  jurisdiction  is  excluded  by 
statute." 

My  argument  has  already  been  made  to  show  that  the  jurisdiction  of 
the  commissioner  to  investigate  is  not  the  exclusive  remedy,  that  there 
is  a  cause  of  action  in  respect  to  which  this  court  has  jurisdiction  to  grant 
a  remedy  irrespective  of  the  declaration  of  right.  Therefore,  I  think 
that  the  declaration  which  I  have  already  indicated  may  be  made,  and, 
in  addition  that  the  plaintiff  may  have  a  restraining  order  as  indicated. 

Since  the  judgment  appealed  from  was  given  and  the  appeal  asserted, 
the  legislature  has  passed  an  act  which  the  defendant  company  contends 


1910]  Attorney-General  v.  Dominion  Coal  Co.  697 

has  rendered  any  decision  of  this  court  useless.  That  even  if  the  Attor- 
ney-General succeeds,  has  a  declaration  and  ought  to  have  the  map  and 
records  corrected,  the  relator  will  not  be  able  to  obtain  from  the  com- 
missioner a  lease  of  the  vacant  ground  as  declared,  or  to  expropriate  it 
in  order  to  construct  a  tunnel  through  it  to  his  off-shore  areas.  Even 
if  that  may  be  it  is  irrelevant.    The  action  may  be  and  ought  to  be  decided. 

But  I  think  that  the  construction  and  purpose  of  that  act  is  not  what 
was  contended  for  by  the  defendant.  The  act  which  I  will  quote  is  1908, 
c.  11,  of  the  statutes  of  Nova  Scotia: 

"Whereas  disputes  have  arisen  as  to  the  location  and  boundaries  of 
certain  submarine  coal  mining  areas  now  under  lease  or  license  to  search, 
or  under  application  for  lease  or  license  to  search,  situate  within  the 
territory  mentioned  in  the  first  section  of  this  act;  Be  it  therefore 
enacted,  etc. 

"1.  Notwithstanding  any  of  the  provisions  of  the  Mines  Act,  or  any 
amendments  thereto,  the  commissioner  *  *  *  shall  refuse  any  appli- 
cation for  a  coal  mining  lease  or  license  to  search  of  or  over  any  sub- 
marine area  or  tract  of  ground  comprised  within  the  territory  situate 
*  *  *  (describing  it),  and  shall  refuse  to  grant  a  lease  of  any  area 
or  tract  of  ground  comprised  within  said  territory,  notwithstanding  any 
application  for  lease  thereof  heretofore  made  or  any  existing  license 
to  search. 

"2.  The  commissioner  *  *  *  shall  cause  to  be  made  all  surveys, 
investigations  and  inquiries  necessary  to  determine  the  location  and 
boundaries  of  any  or  all  leases  heretofore  issued  of  areas  or  tracts  of 
ground  comprised  within  the  territory  mentioned  in  the  next  preceding 
section." 

As  I  have  intimated,  the  action  of  the  commissioner  under  this  Act 
is  automatic.  From  the  cases  of  Attorney-General  v.  McDonald,  2  Nova 
Scotia  Dec.  125,  to  In  re  Hanright,  37  N.  S.  R.  284,  the  cases  all 
show  that  he  has  no  discretion  to  refuse  or  receive  an  application.  The 
disturbance  of  any  lease  as  the  result  of  a  decision  might  lead  to  the 
disturbance  of  other  leases  dependent  for  their  boundaries  upon  the 
description  in  that  lease.  For  these  are  submarine  areas  and  there  are 
no  monuments.  And  the  displacement  might  lead  to  applications  by  out- 
side parties  which,  as  I  have  indicated,  the  commissioner  would  not  have 
power  to  refuse.  And  these  might  injure  the  rights  of  those  who  have 
at  least  equities  against  the  Crown.  This  legislation,  is,  I  think,  an 
attempt  to  lock  up  the  district  for  the  time,  that  is,  during  the  pendency 
of  litigation  to  settle  the  difficulty,  so  that  it  will  not  be  open  for  appli- 
cations or  even  the  granting  of  licenses  or  leases  already  applied  for. 

The  provision  contemplates  surveys  and  investigations,  but  they  would 
be  useless  unless  they  are  to  be  followed  by  the  issuing  of  licenses  and 


698  Water  and  Mineral  Cases.        [Nova  Scotia 

leases  in  accordance  with  the  result.  If  this  action  in  this  court  is 
destroyed  by  this  legislation,  the  powers  of  the  commissioner  to  investi- 
gate under  the  principal  act  is  also  destroyed,  that  power  to  investi- 
gate being  founded  on  or  annexed  to  the  power  to  issue  licenses  or  leases. 

The  Act  of  1908  appears  to  be  only  an  extension  of  the  principle  of 
section  17  of  the  Mines  Act  to  the  present  dispute  in  this  court.  That 
section  (and  its  wisdom,  from  what  I  have  already  said,  is  obvious)  is  as 
follows : 

"No  application  shall  be  accepted  for  a  license  or  lease  of  any  areas 
or  tract  of  ground  the  right  to  a  license  or  lease  of  which  is  at  the  time  of 
such  application  in  dispute  before  the  commissioner  *  *  *  or  before 
any  court  of  appeal  or  until  the  time  allowed  for  appeal  from  any  decis- 
ion in  respect  to  such  right  has  expired." 

But  the  Act  of  1908  is  only  intended  to  lock  up  the  district  while 
the  disputes  involved  in  this  action  are  pending  and  those  resulting  from 
the  determination  of  it.  The  legislation  contemplated  that  the  com- 
missioner might  after  that  receive  applications  or  issue  licenses  or  leases, 
or  at  least  that  it  would  be  very  easy,  when  the  action  was  disposed 
of  and  the  rights  adjusted  in  accordance  therewith,  to  pass  legislation 
to  unlock  the  district  again.  It  could  not  have  been  intended  to  forever 
prevent  the  issuing  of  licenses  and  leases  in  that  district  because  the 
terms  of  leases  and  licenses  and  even  of  renewals  have  limits  in  point 
of  time.  Indeed,  at  the  very  session  following  that  one,  an  amendment 
was  passed  releasing  part  of  the  district  which  had  been  locked  up. 

Over  a  year  and  a  half  has  elapsed  since  the  act  was  passed  and  it 
does  not  appear  that  any  surveys  or  investigations  have  taken  place  pend- 
ing the  decisions  of  this  court  which  would  indicate  the  extent  that  the 
boundaries  are  likely  to  be  displaced,  if  at  all. 

It  will  be  novel  indeed  that  the  very  legislation  which  was  passed  to 
aid  in  carrying  out  the  principles  settled  by  the  decision  in  this  action 
and  in  applying  them  to  the  adjoining  areas  should  be  used  to  defeat 
the  action  and  prevent  anything  being  decided,  and  that  too  after  a  most 
expensive  contest.  It  is  said  to  be  inexpedient  to  make  a  declaration  of 
the  parties'  rights  and  I  think  that  is  an  unusual  doctrine  in  a  court  of 
law,  and  particularly  in  a  suit  in  which  the  Attorney-General  is  the 
plaintiff.  I  say  that  the  legislation  contained  in  the  Act  of  1908  is  useless 
to  give  the  relator  his  rights  without  the  aid  of  this  action  because  the 
defendant  need  pay  no  attention  to  anything  attempted  to  be  done  under 
it.  The  relator  is  entitled,  if  nothing  else,  to  have  it  determined  for  the 
mere  purpose  of  deciding  the  question  of  costs  incurred  before  that  act 
was  passed. 

In  my  opinion  the  appeal  should  be  allowed  with  costs  of  the  action, 
and  there  should  be  a  declaration  made  and  a  restraining  order  granted 
in  the  terms  indicated,  against  both  defendants. 


1910]  Attorney-General,  v.  Dominion  Coal  Co.  699 

MEAGHER,  J.,  read  an  opinion  (not  filed)  in  which  he  was  understood 
to  state  that  his  views  were  sufficiently  disclosed  in  his  opinion  as  reported 
in  the  case  In  re  Dominion  Coal  Co.,  42  N.  S.  R.  108.  Where  a  discretion 
was  given  to  the  court  it  must  be  exercised  with  great  care  and  it  would 
not  be  exercised  where  the  result  would  be  embarrassing.  He  could  not 
persuade  himself  that  the  court  should  make  a  declaration  at  this  stage 
because  it  might  defeat  the  object  of  the  statute  or  embarrass  the  inquir- 
ies to  be  made  under  it.  With  respect  to  the  claim  for  an  injunction  he 
need  only  say  that  it  could  not  be  granted  if  the  declaration  were  upheld. 
He  thought  the  appeal  should  be  dismissed. 

LONGLEY,  J.  Previously  to  August,  1907,  the  Dominion  Coal  Co.  were 
the  holders  of  a  number  of  submarine  coal  mining  leases,  situate  near 
Point  Aconi,  north  of  Sidney  Harbor.  They  had  been  acquired  by  the 
Dominion  Coal  Co.  from  the  previous  holders,  and  they  were  represented 
on  the  plan  in  the  Mines  Office  as  occupying  the  whole  space  along  the 
shore  for  a  considerable  distance. 

Mr    T    Sydney  Burchell,  the  relator  in  this  action,  a  few  years  ago, 
and  Ion-  after  the  Dominion  Coal  Co.  had  obtained  a  transfer  of  their 
leases   applied  and  obtained  leases  of  a  number  of  submarine  areas  out- 
side of  those  held  by  the  Dominion  Coal  Co.  and  abutting  thereon.    By 
some  means  or  other,  possibly  by  having  a  survey  made  of  his  own 
areas    Mr    Burchell  seems  to  have  discovered  that  the  plan  of  the  sub- 
marine areas  of  the  Dominion  Coal  Co.  was  made  upon  an  erroneous 
conception  of  the  configuration  of  the  shore  in  that  vicinity.     This  was 
in  no  wise  due  to  any  fault  of  the  Dominion  Coal  Co.  or  their  predeces- 
sors in  title.    If  the  geographical  outlines  of  the  country  in  the  vicinity 
of  these  areas  were  inaccurately  copied  upon  the  official  plan  in  the  mines 
office  it  is  not  quite  clear  that  the  Dominion  Coal  Co.  had  any  means  of 
rectifying  this.     However,  when  it  became  known  that  certain  physical 
features  on  the  coast  had  been  erroneously  represented  on  the  plan,  and 
that  this  fact  might  lead  to  an  indication  of  vacant  land  when  the  leases 
were  applied  to  the  actual  configuration  of  the  land,  the  Dominion  Coal 
Co   surrendered  certain  of  their  leases  and  took  up  others,  designed   as 
far  as  it  was  in  their  power  to  do  so,  to  cover  every  part  of  the  area  which 

they  had  under  lease.  , 

On  the  2nd  day  of  April,  1897,  Mr.  J.  Sydney  Burchell  applied  at  the 
mines  office  for  a  lease  covering  some  of  the  identical  area  which  the 
Dominion  Coal  Co.  had,  or  were  assumed  to  have  had,  under  lease,  and 
the  commissioner  of  mines  declined  to  receive  this  application  on  the 
ground  that  there  was  no  vacant  land  in  the  area  applied  for.  _ 

Thereupon,  on  the  5th  of  August,  1907,  Mr.  Burchell,  having  previously 
obtained  the  use  of  the  name  of  the  Attorney-General  by  fiat,  issued  a 


700  Water  and  Mineral  Cases.         [Nova  Scotia 

writ  against  the  defendant,  Dominion  Coal  Co.,  under  the  Judicature  Act 
(the  action  being  one  which  before  the  Judicature  Act  would  have  been 
brought  by  way  of  information  in  chancery).  The  objects  of  this  action 
were  principally  twofold.  One  was  to  have  a  lease  issued  to  the  Domin- 
ion Coal  Co.,  No.  430,  set  aside  as  containing  more  than  one  square  mile 
and  for  the  uncertainty  of  its  boundary  lines,  and  also  a  declaration  that 
there  was  vacant  land,  not  covered  by  any  lease  or  application  for  lease 
or  license  to  search,  and  which  the  said  relator  covered  by  his  application 
made  on  the  2nd  April,  1907,  and  which  he  claims  he  is  entitled  to  have 
issued  to  him  by  said  Commissioner  of  Mines.  A  defence  covering  all 
these  points  was  filed  by  the  defendants,  and  the  action  came  on  for  trial 
before  Mr.  Justice  Russell  in  Sydney,  in  January,  1908. 

Mr.  Justice  Russell  in  his  judgment  finds  that  the  lease  No.  430  does 
not  exceed  one  square  mile  in  extent,  and  in  respect  to  the  declaration 
that  there  is  vacant  space,  he  decides  that  he  cannot  enter  upon  that 
inquiry  as  it  is  a  matter  for  the  Commissioner  of  Works  and  Mines, 
and  could  only  come  before  the  court  on  his  refusal  to  grant  a  lease. 

The  plaintiff  has  brought  the  matter  by  way  of  appeal  to  this  court 
from  its  decision. 

Since  this  cause  was  heard  and  determined  by  Mr.  Justice  Russell 
the  position  of  matters  between  the  parties  had  been  considerably  affected 
by  an  Act  of  the  Legislature  of  Nova  Scotia,  passed  the  16th  April,  1908. 
By  section  2  of  this  Act.  it  is  provided : 

"The  Commissioner  of  Public  Works  and  Mines  shall  cause  to  be  made 
all  surveys,  investigations  and  inquiries  necessary  to  determine  the  loca- 
tion and  boundaries  of  any  or  all  leases  heretofore  issued  of  areas  or 
tracts  of  ground  comprised  within  the  territory  mentioned  in  the  next 
preceding  section." 

The  area  described  in  the  next  preceding  section  completely  covers  all 
ground  which  forms  the  subject-matter  of  this  action.  I  can  only  regard 
this  section  as  expressing  the  intention  of  the  legislature  that  the  deter- 
mination of  all  questions  in  respect  of  boundaries,  including  the  extent 
of  any  areas,  so  far  as  the  submarine  areas  near  Point  Aconi  are  con- 
cerned, is  to  be  imposed  upon  and  vested  in  the  Commissioner  of  Works 
and  Mines,  and  this  court  is  relieved  of  the  responsibility  of  dealing 
with  this  question  altogether.  I  think  it  proper  to  add,  however,  that 
if  this  legislation  had  not  been  passed,  I  should  have  still  felt  that  no 
good  grounds  had  been  shown  for  disturbing  Mr.  Justice  Russell's  judg- 
ment on  the  question  of  lease  No.  430,  nor,  after  a  careful  examination 
of  the  authorities,  would  I  have  felt  disposed  to  give  as  large  an  applica- 
tion to  the  dictum  of  Lord  Chelmsford  in  R.  v.  Hughes,  as  did  the  learned 
judge  below.  I  think  ample  authority  is  found  in  recent  decisions  to 
justify  the  holding  that  the  addition  of  a  few  acres  more  than  one  square 


1910]  Attorney-General  v.  Dominion  Coal  Co.  701 

mile  in  the  issue  of  any  lease  does  not  necessarily  make  it  void,  but  in 
respect  of  the  matter  before  me,  especially  in  view  of  c.  II,  §  2,  of 
the  Acts  of  1908,  I  have  no  difficulty  in  reaching  the  conclusion  that  the 
plaintiff  completely  fails  in  respect  of  that  part  of  his  action  which  attacks 
the  validity  of  the  defendant's  lease,  No.  430. 

There  remains  only  one  other  contention  of  the  plaintiff  upon  which 
we  are  called  upon  to  make  a  determination,  namely,  a  declaration  that 
vacant  land  exists  somewhere  within  the  area  generally  covered  by  the 
defendants'  leases.  On  this  point,  also,  the  legislature  has  undertaken  to 
deal.     Section  1  of  chapter  11  of  the  Acts  of  1908,  provides: 

"Notwithstanding  any  of  the  provisions  of  the  Mines  Act  or  any 
amendments  thereto,  the  Commissioner  of  Public  Works  and  Mines 
shall  refuse  any  application  for  a  coal  mining  lease  or  license  to  search 
of  or  over  any  submarine  area  or  tract  of  ground  comprised  within  the 
territory  situate  between  the  prolongation  northeastwardly  of  a  line  drawn 
through  the  middle  of  Sydney  Harbor  and  a  line  parallel  thereto  from  a 
point  on  the  shore  near  Cape  Dauphin  passing  through  Bird  Island,  and 
shall  refuse  to  grant  a  lease  of  any  area  or  tract  of  ground  comprised 
within  said  territory  notwithstanding  any  application  for  lease  thereof 
heretofore  made  or  any  existing  license  to  search." 

It  is  quite  clear  that  the  legislature  has  determined  that  no  lease  shall 
be  issued  of  any  land  which  shall  be  found  to  be  vacant  within  the  area 
covered  by  the  block  of  leases  now.  and  for  some  time  past,  held  by 
the  Dominion  Coal  Co.  It  is  not  necessary,  as  a  rule,  to  comment  upon 
the  action  of  a  legislature,  which  is  the  supreme  law-making  power  in 
the  land,  nor  is  it  necessary  to  make  the  slightest  reference  to  the  wisdom 
or  propriety  of  the  section  above  quoted.  To  my  mind  it  can  only  bear 
one  interpretation,  namely,  a  commendable  disposition  to  prevent  any 
outsider  from  interfering  with  the  area  of  coal  leases  which  the  Domin- 
ion Coal  Co.  has  acquired  in  good  faith  and  holds  under  a  bona  fide  belief, 
derived  from  the  plans  in  the  mines  office,  that  its  areas  cover  the  entire 
block. 

It  was  urged  in  the  argument  that  the  legislature,  having  thus  with- 
drawn these  areas  from  lease,  a  declaration  that  vacant  lands  exist  within 
this  area  would  be  absolutely  purposeless,  inasmuch  as  it  would  be  of 
no  benefit  whatever  to  the  relator  in  this  action.  While  proceedings  are 
taken  in  this  case  in  the  name  of  the  Attorney-General  and  must,  strictly 
speaking,  be  regarded  from  this  point  of  view,  a  very  strong  impression 
exists  in  my  mind  that  these  proceedings  are  in  reality  carried  on  by  the 
relator  in  the  name  of  the  Attorney-General  for  the  purpose  of  furthering 
his  own  interest.  It  can  scarcely  be  assumed  that  the  legislation  to  which 
I  have  referred  could  have  been  adopted  if  opposed  by  the  Attorney-Gen- 
eral.    But,  in  spite  of  this  impression,  I  feel  that  I  am  called  upon  to 


702  Water  and  Mineral  Cases.         [Nova  Scotia 

deal  with  the  issue  precisely  as  if  the  Attorney-General  were  carrying 
on  the  suit  solely  in  the  interests  of  the  Crown,  and,  therefore,  I  con- 
ceive that  the  Crown  may  be  entitled  to  a  declaration  that  the  King  has 
vacant  land  in  this  area  notwithstanding  the  fact  that  the  legislature  has 
prevented  present  vacant  land  from  being  leased.  Such  being  my  view, 
it  becomes  necessary  to  determine  how  far  the  plaintiffs  have  been  able 
to  establish  clearly  the  existence  of  vacant  land  within  the  area  now  in 
dispute. 

The  onus  of  establishing  vacant  land  is  clearly  upon  the  plaintiffs  and, 
as  a  declaration  of  vacant  land  would  be  clearly  derogatory  to  the  rights 
of  the  defendants,  the  evidence  must  be  clear  and  satisfactory  to  justify 
a  judicial  pronouncement  whereby  a  portion  of  the  area  which  defendants 
have  long  held  under  lease  shall  be  declared  to  be  in  the  King.  The 
evidence  which  the  plaintiffs  offer  in  support  of  the  proposition  of  vacant 
land  is  based  chiefly  upon  the  boundaries  in  the  old  lease  No.  41.  Accord- 
ing to  the  configuration  of  the  land  as  now  discovered,  the  southern 
boundary  of  that  lot  could  scarcely  be  extended  to  point  G,  where  it  is 
located  on  the  plan,  but  it  must  be  remembered  that  when  the  lease  was 
issued  it  was  based  upon  the  plan  in  the  mines  office  in  accordance  with 
the  configuration  then  appearing  upon  their  plans.  Upon  the  geographi- 
cal outlines  of  the  coast,  as  then  conceived,  and  as  represented 
plainly  on  the  plan  accompanying  their  grant,  the  southern  boundary  of 
No.  41  would  extend  to  the  south  of  Alder  Point  to  G.  Leases  42  and 
no,  lying  to  the  east  of  this  lot,  were,  in  the  plan,  made  coterminus  with 
lease  No.  41  on  their  southern  boundary.  When  it  was  found  that  the 
configuration  upon  which  these  leases  had  been  issued  was  inaccurate, 
the  defendant  surrendered  lease  41  and  some  others  in  the  vicinity  and 
took  out  others.  The  one  formerly  known  as  No.  41  now  appears  as 
No.  427,  and  its  southern  boundary  is  distinctly  placed  at  G,  and  upon 
its  present  boundaries  does  not  exceed  one  square  mile  in  extent.  It  was 
argued  by  plaintiffs  that  if  lease  No.  41  were  extended  to  point  G,  at  the 
southern  boundary  it  would  exceed  one  square  mile,  and  so  it  would, 
having  regard  to  the  later  and  more  accurate  configuration  of  the  shore, 
but  it  would  not  necessarily  exceed  one  square  mile  upon  the  configuration 
then  conceived. 

As  leases  42  and  no,  immediately  east  of  41,  now  427,  have  their 
southern  boundary  made  coterminus  with  the  boundaries  of  41  and  427, 
there  would  in  this  case  be  no  vacant  land,  and  430  would  include  every 
acre  of  vacant  land  and  would  be  less  than  one  square  mile  in  extent. 

The  defendants,  in  addition  to  contesting  the  contentions  of  the  plain- 
tiffs in  regard  to  the  location  of  41,  42  and  no  on  the  north,  have  endeav- 
ored to  establish  a  location  for  the  areas  to  the  south  of  430,  which  would 
extend  that  area  considerably  farther  north  than  it  appears  upon  the 


1910]  Attoeney-Genekax.  v.  Dominion  Coax.  Co.  703 

plan.  This  is  done  by  giving  a  somewhat  more  northerly  location  to 
lease  No.  54,  and  then  widening  each  of  the  leases  between  that  and  429 
by  applying  a  different  interpretation  to  the  words  "parallel  to  the  shore." 
On  the  plan  the  lines  of  said  grant  have  been  so  located  as  to  make  their 
eastern  line,  as  well  as  their  western  coast  line,  conform  to  the  configura- 
tion of  the  coast,  whereas  it  is  claimed  that  the  word  "parallel"  when 
applied  in  legal  cases  to  the  plotting  of  land  does  not  necessarily  imply 
a  mathematical  parallel,  but  a  general  direction.  See  Bouvier's  Law  Dic- 
tionary; 2  Appeal  Cases  423,  5  Johnston,  489.  If  the  usual  sense  in 
which  "parallel"  is  used  to  denote  general  direction  were  applied  to  these 
areas  south  of  430,  the  effect  would  be  that  430  would  be  located  consider- 
ably north  of  its  present  position  on  the  plan.  It  is  not  necessary,  from 
my  point  of  view,  to  give  especial  regard  to  this  contention,  as  I  am  of 
the  opinion  that  the  plaintiff  has  failed  to  show  any  vacancy  between 
430  and  42  and  no.  The  most  that  can  b'e  said  that  the  plaintiff  has 
done  is  to  throw  some  doubt  as  to  the  precise  position  of  42  and  110. 
I  think  the  preponderance  of  evidence  is  that  their  southern  boundary 
is  coterminus  with  that  of  lease  427,  but,  even  if  I  entertained  any  vague 
doubts  upon  this  point,  I  would  not  conceive  these  as  forming  any  basis 
for  a  declaration  of  vacant  land.  Such  a  declaration  would  be  a  judicial 
determination,  which  would  permanently  affect  the  defendants'  rights, 
and  it  would  be  unjust  and  obnoxious  to  the  spirit  of  the  law 
to  destroy  long  enjoved  rights  on  mere  surmises  and  vague  conjectures. 

The  whole  question  of  a  declaration  is  of  no  importance  except  as 
affecting  the  costs  of  this  suit.  Under  outstanding  legislation,  the  relator 
can  take  nothing,  if  such  declaration  were  made,  but  I  think  the  plaintiffs 
have  failed  to  clearly  and  satisfactorily  establish  vacant  land  and  under 
all  the  circumstances  surrounding  this  case,  I  do  not  think  that  any  court 
of  law  would  be  disposed  to  lend  any  especial  countenance  to  such  a 
proposition.  It  is  based  solely  upon  a  technicality  and  would  have  no 
foundation  except  from  the  accidental  inaccuracies  of  the  mines  office 
plan,  upon  which  the  defendants  in  good  faith  have  relied ;  indeed,  have 
been  compelled  to  rely.  I  think  the  appeal  should  be  dismissed  and  the 
plaintiff's  action  dismissed  with  costs. 

It  was  objected  by  the  defendants  that  the  trustees  for  the  bond  holders 
were  not  joined  in  this  action  as  their  rights  will  be  affected  by  any  decis- 
ion in  this  cause.  An  application  was  thereupon  made  by  the  plaintiff 
that  the  trustees  of  the  bond  holders  should  be  joined  with  the  defendants 
in  the  action.  This  fact  in  no  way  affects  the  determination  which  I  have 
reached,  which  would  have  been  the  same  if  the  trustees  had  been  joined 
at  the  beginning. 

Appeal  dismissed  without  costs. 


704 


Water  and  Mineral  Cases.        [Nova  Scotia. 


In  re  DOMINION  COAL  CO. 

[Supreme  Court  of  Nova  Scotia,  September  2,  1907.] 
42  Nova  Scotia   108. 

Coal — Licenses  to  Search — Leases — Conflicts — Powers  of  Commissioner. 

The  Dominion  Coal  Company,  who  were  holders  of  a  license  to  search  for  coal, 
covering  an  area  of  five  square  miles,  made  application  under  the  provisions  of  the 
Mines  Act,  R.  S.,  c.  18,  §  194,  for  a  lease  of  an  area  of  one  square  mile  of  the  land 
included  within  the  boundaries  of  their  license  to  search. 

The  description  in  the  application  or  the  lease  described  the  area  applied  for  as 
situated  at  the  southeast  corner  of  the  area  originally  licensed  to  M.  and  then  west- 
wardly,  by  the  southern  line  of  said  lease,  two  miles. 

A  question  having  arisen  as  to  the  exact  location  of  the  area  under  lease  to  M. 
and  that  applied  for  by  the  company,  the  commissioner  of  mines  ordered  a  survey, 
as  the  result  of  which  it  was  found  that  a  portion  of  the  lease  granted  to  M. 
extended  beyond  the  boundaries  of  his  license  to  search  and  included  about  one-half 
of  the  area  applied  for  by  the  company. 

The  commissioner  under  these  circumstances  declined  to  issue  the  lease  applied 
for  by  the  company,  and  directed  the  issue  of  a  lease  the  boundaries  of  which  were 
described  in  such  a  way  as  to  exclude  any  portion  of  the  area  under  lease  to  M. 

Held,  by  the  majority  of  the  court  (adopting  the  opinion  of  Davies,  J.,  in  Drysdale 
v.  Dominion  Coal  Co.,  34  S.  C.  C.  332),  that  the  matter  was  one  involving  a  legal 
question  upon  which  the  commissioner  had  no  right  to  pass;  that  no  decision  of 
his  could  either  contract  or  expand  the  lease  to  M.,  and  it  was  therefore  his  duty 
to  have  granted  the  application  made  by  the  company,  excepting  thereout  such  land 
as  might  be  found  and  determined  to  be  included  in  the  lease  to  M.,  leaving  that 
question  to  be  subsequently  determined  by  the  court  in  a  proper  action. 

Also,  that  the  commissioner  exceeded  his  powers  in  relation  to  the  survey  ordered 
by  him,  such  power  (§  195),  being  confined  to  a  survey  of  the  tract  of  ground 
selected  out  of  the  area  covered  by  the  license  to  search,  and  giving  no  power  to 
direct  the  survey  and  the  preparation  of  a  plan  of  another  tract  of  ground. 

Also,  that  the  commissioner  exceeded  his  authority  in  permitting  M.  to  go  out- 
side the  boundaries  of  his  license  to  search  and  include  in  his  lease  land  already 
covered  by  a  license  to  search  issued  to  another  party  and  assigned  to  the  coal 
company. 

Appeal  from  the  judgment  or  decision  of  the  Hon.  W.  T.  Pipes,  Com- 
missioner of  Public  Works  and  Mines  for  the  Province  of  Nova  Scotia, 
made  March  28,  1906,  refusing  a  lease  of  mining  areas  applied  for  by  the 
Dominion  Coal  Co.  The  facts  are  fully  set  out  in  the  judgment  of 
Graham,  E.  J.     Appeal  dismissed  September  2,  1907. 


NOTE. 
Sufficiency  of  Application  for  License. 

An  application  for  a  license  has  been 
held  to  be  sufficient  although  the  descrip- 
tion contained  in  it  is  based  on  an  appli- 
cation made  by  other  persons  which  at 
the  time  is  not  on  file  with  the  commis- 


sioner of  mines,  Townshend,  J.,  say- 
ing: "I  do  not  hold  that  the  words  in 
the  statute  are  to  be  read  with  the  same 
strictness  which  would  be  applied  to  a 
deed  in  a  more  cultivated  or  wooded 
locality,  and  they  must  also  be  read  with 
reference  to  the  object  of  the  act,  which 
was  to  have  the  areas  sufficiently  defined 


1907]  In  ee  Dominion  Coal  Co.  705 

In  support  of  the  appeal— J.  J.  Ritchie,  K.  C,  and  H.  Lovett,  K.  C. 
Contra — A.  A.  Mackay. 

GRAHAM,  E.  J.  The  extract  which  I  shall  presently  quote  from  the 
opinion  of  Mr.  Justice  Davies  in  the  Supreme  Court  of  Canada,  when 
delivering  the  judgment  upon  the  mandamus  requiring  the  commissioner 
of  mines  to  hear  this  case,  is  so  very  much  in  point,  and  so  much  in 
accordance  with  my  own  view,  that  it  will  not  be  necessary  for  me  to 
add  very  much  to  it,  except  in  showing  its  bearing. 

The  scheme  of  the  Mines  Act  in  respect  to  coal  is  to  grant  a  license 
to  search  for  coal  which  may  cover  as  much  as  five  square  miles,  and  it 
is  good  for  eighteen  months.  But  applications  for  licenses,  which  are 
called  second  rights,  may  be  put  on  the  same  area  during  the  currency 
of  a  license  to  search,  but  only  to  become  a  useful  license  when  the  first 
or  previous  useful  license  expires,  and  it  will  be  good  for  eighteen  months 
after  it  becomes  a  useful  license. 

During  the  currency  of  a  license  the  holder  (R.  S.  c.  18,  §  194)  may 
select,  having  priority,  a  square  mile  out  of  the  five  square  miles,  and 
obtain  a  lease  for  the  purpose  of  mining  the  coal  which  he  has  been 
exploring  for.  Whereupon  the  next  license  springs  into  use  for  the 
balance  of  the  area.  A  lease  may  be  applied  for  without  any  preliminary 
license  to  search  (R.  S.  1900,  c.  18,  §  27). 

The  law  now  (R.  S.  1900,  c.  18,  §  15),  as  it  was  in  1892,  c.  1,  §§  17, 
95,  is  to  the  effect  that  "No  application  shall  be  accepted  for  areas  or 
tracts  of  ground  already  applied  for  or  under  license  or  lease  except  as 
in  this  chapter  provided."  Areas  may  be  licensed  or  leased  only  after 
the  expiration  of  the  licenses  or  leases  upon  them.  R.  S.  1906,  c.  18,  § 
28  R.  S.  1892,  c.  1,  §  147. 

John  White  had  two  licenses  running  on  a  tract  applied  for  January 
24,  1893,  the  first  of  which  would  expire  and  did  expire  July  24,  1894, 
and  the  second  in  the  ordinary  course  would  expire  January  26,  1896. 
These  licenses  were  transferred  to  Henry  M.  Whitney,  March  11,  1893. 
On  October  12,,  1894,  the  Dominion  Coal  Company  applied  for  a  license, 
Exhibit  F. 


to  present  a  second  grant  over  the  same 
ground  involving  disputes."  In  re 
Malaga  Barrens,  21  Nova  Scotia  391. 

In  Fielding  v.  Mott,  18  Nova  Scotia 
339,  defendant's  application  described  the 
areas  applied  for  as  "commencing  at  a 
birch  tree  marked  A.  D.,  and  being  on 
the  east  side  of  Salmon  River  about 
W.  &  M. — 45 


five  miles  above  the  bridge."  It  appeared 
that  the  tree  was  2000  feet  distant  from 
the  river,  and  considerably  less  than 
five  miles  from  the  bridge  in  a  direct 
line,  and  it  was  held  that  the  tree  being 
otherwise  sufficiently  identified  the 
description  was  not  vitiated  by  the 
errors  as  to  locality  and  distance. 


706  "Watek  and  Minekal  Cases.        [Nova  Scotia 

On  the  24th  of  July,  1897  (Ex.  G.)  the  Dominion  Coal  Company 
applied  for  a  lease  of  a  mile,  and  it  is  undisputed  that  it  is  selected  out 
of  the  area  described  in  its  license  to  search.  The  description  in  the 
application  for  the  lease  is  as  follows : 

"Beginning  at  the  northeastern  corner  of  area  licensed  Dominion  Coal 
Co.,  January  25,  1896,  marked  8  on  plan  in  Mines  Office,  and  at  the 
southeast  corner  of  area  originally  licensed  Rev.  J.  Murray;  thence 
westerly  by  the  southern  line  of  said  Murray  license  2  miles ;  thence  at 
right  angles  northerly  40  chains ;  thence  at  right  angles  easterly  2  miles ; 
thence  northerly  to  place  of  beginning,  said  northeastern  corner  being 
distant  160  chains,  N.  78  degrees  west  from  the  starting  point  of  the 
Daly  license,  beginning  at  the  southwest  corner  of  area  leased  H.  N. 
Paint,  April  29,  1879,  No.  88,  which  land  does  not  exceed  in  extent  one 
square  mile  at  the  price  of  $50." 

The  description  of  Mr.  Murray's  license  to  search  dated  December 
9,  1890,  is  as  follows : 

"At  the  northwest  angle  of  a  license  to  search  held  by  E.  T.  Mosely, 
dated  September  2,  1890;  thence  running  southerly  by  the  western  line  of 
said  license  2^2  miles ;  thence  at  right  angles  westerly  2  miles ;  thence 
at  right  angles  northerly  2.^/2  miles ;  thence  at  right  angles  easterly  2  miles 
to  the  place  of  beginning,  and  being  the  area  covered  by  Patrick  O'Connor, 
September  4,  1890,  which  land  does  not  exceed  in  extent  five  square 
miles,  at  the  price  of  $30." 

The  description  in  his  application  for  lease  dated  August  31,  1893,  and 
in  the  lease  dated  October  5,  1893,  is  as  follows: 

"Beginning  at  a  stake  marked  (J.  M.)  on  the  southern  side  of  the 
Black  Brook  Road,  being  8  chains,  44  links  west  of  the  gate  leading  to 
Widow  Alex  McDonald's  house,  and  about  14  chains  from  the  west  side 
line  of  John  Murray's  area;  thence  south  15  degrees  west,  38 chains; 
thence  south  75  degrees  east,  142  chains;  thence  north  15  degrees  east, 
45  chains;  thence  north  75  degrees,  west  142  chains;  thence  south  15 
degrees,  west  7  chains  or  to  place  of  beginning,  being  an  area  of  one 
square  mile  selected  out  of  license  to  search  held  by  me,  which  land  does 
not  exceed  in  extent  one  square  mile,  at  the  price  of  $50." 

It  will  be  seen  that  one  area  bounds  on  the  other,  the  company's  area 
being  south  of  Murray's.  In  order  to  determine  what  area  or  portion  of 
the  area  properly  belongs  to  the  Dominion  Coal  Company,  it  is  necessary 
to  show  the  proper  location  on  the  ground  according  to  its  description 
(not  according  to  what  surveyors  thought  it  was)  and  the  Murray  lease. 
And  in  doing  that,  which  is  a  very  usual  thing  to  do,  it  is  not  generally 
considered  that  one  is  making  any  attack  on  the  lease  itself. 


1907]  In  he  Dominion  Coal  Co.  707 

There  are  difficulties  about  that  description.  In  Drysdale  v.  Dominion 
Coal  Company,  34  S.  C.  C,  at  page  332,  Mr.  Justice  Davis  said  this : 

"From  the  evidence  before  the  commissioner  it  appeared  that  Mr. 
Murray's  lease  granted  some  years  before  the  Dominion  Coal  Company's 
application  was  made,  might  overlap  the  lands  applied  for  in  the  latter. 
Whether  it  would  do  so  or  not  depended  largely  upon  the  construction 
of  the  lease  and  other  facts  to  be  determined.  Were  the  posts  and 
specific  distances  in  the  description  of  the  lands  leased  to  control,  and  the 
reference  to  the  original  application  for  a  license  to  search  to  be  treated 
as  falsa  demonstratio;  or  was  the  latter  line  to  control  the  specific  dis- 
tances? These  were  legal  questions  on  which  the  commissioner,  T 
think,  had  no  right  to  pass.  What  lands  were  legally  covered  by  Murray's 
lease  was  a  question  to  be  determined  afterwards  by  the  court  in  a  proper 
action.  No  decision  of  the  commissioner  could  either  contract  or  expand 
the  legal  boundaries  of  Murray's  lease.  I  conceive  therefore,  that  the 
commissioner  might  well  grant  the  Dominion  Coal  Company's  applica- 
tion subject  to  and  excepting  thereout  such  lands  as  might  be  found  and 
determined  to  be  included  in  the  Murray  lease ;  in  other  words  bounding 
it  by  the  lands  whatever  they  were,  described  in  the  Murray  lease. 

"Such  a  decision  would  leave  the  respective  claims  of  the  parties  for 
adjudication  by  the  proper  tribunals,"  etc. 

Before  passing  from  that  extract  I  cite  the  judgment  of  the  Privy 
Council  in  Emmerson  v.  Maddison  (1906)  A.  C.  569,  to  show  that  the 
crown  may  do  what  is  suggested  without  first  establishing  its  title  to 
any  of  the  area  Murray  may  have  taken  in  his  location  not  covered  by 
the  description  in  his  lease. 

I  also  cite  authority  to  show  that  the  commissioner's  powers  to  investi- 
gate and  determine  must  all  be  found  within  the  terms  of  the  act.  In 
Mott  v.  Lockhart,  8  A.  C.  572,  it  is  said  in  the  judgment  of  the  judicial 
cimmittee,  with  reference  to  the  commissioner  of  mines : 

"They  (the  respondents)  say  that  the  appellants  stole  a  march  upon 
them  and  violated  some  understanding  with  them;  but  if  the  fact  were 
so,  the  commissioner  could  pay  no  attention  to  it.  He  is  the  creature  of 
the  statute,  and  has  no  jurisdiction  given  him  to  enforce  equities  entirely 
outside  of  the  statutory  proceedings." 

During  the  argument  of  that  appeal  the  members  used  language  which 
will  be  found  cited  in  Attorney  General  v.  Reynolds,  2.7  N.  S.  R.  at  page 
206,  a  case  which  also  went  before  the  Privy  Council,  and  was  affirmed, 
and  I  cite  it  to  show  that  notwithstanding  an  investigation  by  the  com- 
missioner, the  rights  of  the  parties  may  be  determined  in  a  proper  action. 

In  Fielding  v.  Mott,  18  N.  S.  R.  339,  the  commissioner  granted  to  the 
plaintiff  a  lease  over  the  defendant's  lease,  and  he  raised  his  contentions 
by  an  action  of  ejectment,  and  although  they  were  rejected,  no  one  con- 


708  Water  and  Mineral  Cases.        [Nova  Scotia 

tended  that  the  provisions  for  investigation  were  exclusive.  Many  actions 
of  an  equitable  nature  have  been  maintained  to  decide  conflicting  rights. 

When  the  Commissioner  of  Mines,  Mr.  Church,  commenced  to  investi- 
gate this  matter,  sections  20,  87  and  93  of  the  Revised  Statutes  1900,  c. 
18,  were  not  in  force,  and  I  think  it  is  quite  obvious  that  at  that  time  he 
had  no  power  to  try  the  title  to  land  or  decide  upon  disputed  boundaries. 
Whether  those  sections  apply  or  not,  when  the  later  commissioner  took 
up  the  case,  I  think  that  it  was  not  intended  that  the  commissioner  should 
have  that  power.  And  if  he  has,  it  is  a  power  which  might  well  be  kept 
in  reserve  in  a  complicated  case  until  the  courts  tried  it  in  one  of  the 
usual  modes.  I  refer  to  the  practice  in  Ontario,  when  a  disputed  title 
arises  in  an  investigation,  under  a  statute.  Bennetto  v.  Bennetto,  5 
Pr.  145  (Blake,  V.  C.)  ;  Smith  v.  Smith,  1  O.  L.  R.  404;  Stroud  v. 
Sun  Oil  Co.,  8  O.  L.  R.  748. 

I  think  the  disputes  as  to  title  to  land  and  boundaries  are  of  too 
serious  a  character  to  be  tried  before  the  commissioner.  True,  there  is 
an  appeal  to  this  court  from  his  decision  after  an  investigation,  but  there 
is  no  procedure,  as  in  other  courts,  and  no  further  appeal  to  the  Supreme 
Court  of  Canada.  At  common  law  they  could  only  be  tried  by  action  of 
ejectment  or  trespass,  not  even  in  chancery,  and  it  would  require  very 
express  legislation  to  show  that  a  commissioner  in  such  a  summary  way 
may  try  a  title.  And  to  put  the  company  in  a  position  to  contest  the 
title,  the  commissioner  should  grant  a  lease  which  will  give  the  company 
a  standing  in  court.  If  it  is  found  to  overlap  legally  the  Murray  area 
then,  as  to  the  extent  of  the  overlapping  it  will  be  null. 

There  is  a  further  question  involved  than  the  question  of  mere  bound- 
aries. I  am  also  of  opinion  that  the  power  of  the  commissioner  to  grant 
licenses  and  leases,  and  the  right  of  the  applicant  to  take  the  same, 
depends  entirely  upon  the  terms  of  the  statute,  and  if  they  depart  from 
them,  the  departure  is  simply  void. 

Rex  v.  Hughes,  L.  R.,  1  P.  C.  82 ;  In  re  Hanright,  37  N.  S.  R.  284, 
citing  Attorney  General  v.  McDonald,  2  Geldert  and  Oxley,  125 ;  Queen 
v.  Snow,  3  Geldert  and  Oxley,  499;  Attorney  General  v.  Sheraton,  28 
N.  S.  R.  499;  Attorney  General  v.  Temple,  29  N.  S.  R.,  299. 

So  that  if  Murray,  by  reason  of  the  license  outstanding  for  White, 
had  no  right  to  apply  for,  and  the  commissioner  had  no  power  to  grant, 
a  lease  transcending  the  boundaries  of  Murray's  license  to  search,  then 
it  would  appear  that  under  this  statute  the  excess  would  be  null  and  as 
to  that  excess  the  company  would  have  the  title  by  virtue  of  its  license 
and  application  for  lease  which  take  in  that  excess. 

After  the  courts  had  granted  a  mandamus  to  hear  the  case,  the  then 
Commissioner  of  Mines,  the  Honorable  Mr.  Drysdale,  held  an  investiga- 


1907]  In  ee  Dominion  Coal  Co.  709 

tion  under  the  Mines  Act,  and  his  decision,  dated  the  15th  day  of  April, 
1905,  contains  this  statement: 

"I  find  that  a  portion  of  the  area  selected  and  applied  for  by  the  coal 
company  is  already  covered  by  the  Murray  lease;  that  a  lease  of  any 
such  portion  cannot  issue  to  the  coal  company,  but  a  lease  will  go  to  the 
company  of  that  portion  selected  in  their  application  for  lease  which 
lies  outside  of  the  area  described  in  said  Murray  lease." 

Before  a  lease  was  granted  or  any  further  action  was  taken  upon 
this  decision,  the  Hon.  Mr.  Pipes  succeeded  Mr.  Drysdale  in  the  office, 
and  without  perhaps  noticing  the  language  of  Mr.  Justice  Davies,  he  sent 
a  surveyor  to  the  spot,  and  the  surveyor,  adopting  his  own  or  the  deputy 
commissioner's  construction  of  the  description  of  the  Murray  lease,  has 
placed  the  Murray  leased  area,  to  the  extent  of  at  least  one-half  of  it, 
outside  of  the  lines  of  the  Murray  license,  overlapping  one-half  of  the 
area  applied  for  by  the  company,  and  Mr.  Pipes  has  called  the  parties 
before  hirn,  and  has  decided  not  to  grant  a  lease  in  the  terms  indicated 
in  the  extract  from  the  opinion  of  Mr.  Justice  Davies,  and  allow  the 
parties  by  a  proper  action  in  court,  to  have  the  question  determined  as  to 
where  the  Murray  lease  is  upon  the  ground,  but  to  construe  it  for  him- 
self, and  give  the  lease  the  description  supplied  by  the  surveyor,  which 
will  prevent  the  question  from  ever  being  raised  in  a  court. 

The  surveyor  evidently  understood  from  his  instructions  from  Dr. 
Gilpin,  the  deputy  commissioner,  that  he  was  to  assume  that  the  Murray 
lease  adready  had  been  properly  laid  off  on  the  ground,  and  that  he  was 
to  exclude  that  location  from  the  description  furnished  for  the  proposed 
lease  to  the  company. 

Now,  section  197  of  the  Mines  Act,  under  which  the  commissioner 
acted,  or  under  which  his  action  is  justified,  does  not  enable  him  to  cause 
another  tract  of  ground  to  be  surveyed  and  a  plan  of  that  prepared,  but 
only  the  tract  of  ground  selected  and  applied  for.  That  section  no 
doubt  applies  to  undisputed  boundaries,  as  where  the  applicant's  descrip- 
tion is  not  sufficiently  scientific  for  the  plan  of  the  department,  or 
where  its  locality  in  respect  to  areas  already  on  the  plan  has  to  be  fixed 
for  plotting  on  that  plan. 

Of  course  the  locality  of  that  tract  depends  on  where  the  Murray 
lease  is,  and  that  difficulty,  it  is  proposed  by  Mr.  Justice  Davies,  should 
be  solved  in  a  particular  way. 

It  is  suggested  that  the  coal  company  attend  the  survey,  but  it  is  not 
necessary  to  say  that  consent  cannot  give  the  commissioner  jurisdiction. 
When  a  proper  action  is  brought  it  will  be  time  enough  to  determine 
whether,  in  the  description  of  the  Murray  lease,  the  expression  "being 
an  area  of  one  square  mile  selected  out  of  license  to  search  held  by  me," 


710  "Watek  and  Mineral  Cases.        [Nova  Scotia 

is  to  be  rejected.  I  do  not  say  that  this  is  evidence  in  Dr.  Gilpin's 
testimony,  viz. : 

"Because  Mr.  Murray  declared  he  had  all  the  necessary  measurements 
to  define  the  lease  he  was  applying  for.  Q.  Where  did  he  say  the  position 
was?  A.  It  was  decided  the  position  was  inside  the  license  to  search 
he  owned." 

But  I  say  that  under  this  statute  it  is  most  important  that  the  application 
should  specify  whether  it  is  a  selection  from  a  license  or  an  application 
for  an  uncovered  area.  And  to  the  extent  that  it  is  now  claimed  by 
Murray  that  he  has  the  right  to  take  a  lease  exceeding  the  boundaries  of 
his  license,  the  land  was  already  covered  by  one  of  the  licenses  to  John 
White.     And  to  this  extent  the  statute  was  violated. 

I  do  not  understand  that  the  scheme  of  the  act  is  that  there  may  be 
floating  applications  for  licenses  or  lease  put  in  for  areas  already 
covered  by  license  to  someone  else  which  will  come  into  use  if  that 
third  person  allows  his  license  to  expire.  The  provisions  about  compet- 
ing applications  presented  at  a  given  moment,  and  even  almost  simul- 
taneous applications,  the  provisions  for  registery  of  application  and  the 
provisions  permitting  second  rights,  all  so  carefully  guarded,  show  that 
no  floating  license,  even  as  against  a  third  person,  is  permitted. 

I  refer  to  McColl  v.  Ross,  28  N.  S.  R.  1,  where  a  third  person's 
license,  Wallace's,  prevented  McColl's  floating  license  from  attaching, 
and  operated  in  favor  of  a  later  application  put  in  by  Ross  on  the  expira- 
tion of  Wallace's  license.  The  implication  from  the  section  permitting 
second  rights  was  perhaps  made  clearer  by  the  proviso  in  the  section 
in  the  case  of  the  first  of  McColl's  applications,  but  in  the  case  of  his 
second  application,  there  was  no  proviso,  the  law  having  then  been 
amended.  Moreover,  the  case,  I  think,  shows  that  if  Murray,  instead 
of  applying  for  a  license  had  applied  for  a  license  (second  right)  it 
would  only  have  been  good  as  to  the  area  in  his  first  license,  and  void 
as  to  the  area  covered  by  the  White  license.  That  was  the  position  of 
McColl's  second  application.  It  could  not  be  running  to  come  into 
force  as  a  first  right  on  one  area  at  one  date,  and  on  another  area  at 
another  date,  namely,  as  the  respective  licenses  expired  on  those  areas. 

But  the  question  whether  you  are  to  reject  the  portion  of  the  descrip- 
tion as  to  the  area  leased  being  within  the  licensed  area,  or  the  portion 
as  to  the  stake  marked  J.  M.,  8  chains,  44  links  west  of  a  gate,  is  a 
more  serious  question  here  than  ordinarily  occurs,  because  the  registry 
is  the  important  place  to  look  for  mining  titles,  the  expiry  of  license  and 
second  rights,  and  the  selection  of  an  area  for  leasing.  For  four  years  it 
was  supposed  in  the  department,  as  Dr.  Gilpin's  testimony  shows,  that 
Murray's  lease  was  within  the  boundaries  of  his  license  because  it  said 


1907]  In  ee  Dominion  Coal  Co.  711 

so.  The  registry  showed  it  to  be  that  way  in  consequence  of  that 
recital  in  the  registered  lease.  It  was  not  surveyed,  and  it  was  not 
until  a  survey  was  made  July  16,  1897  (Exhibit  R),  that  the  fact  of 
the  stake,  if  the  supposed  gate  was  taken,  showed  the  lease  to  be,  as  I 
have  said,  one-half  outside  of  the  boundaries  of  the  license. 

Meanwhile  the  company,  which  had  acquired  the  John  White  licenses, 
had  allowed  them  to  expire ;  but  they  could  have  made  a  selection  under 
them  after  the  Murray  lease  was  granted,  and  taken  a  lease.  And 
they,  being  prior  to  the  Murray  lease,  the  lease  founded  on  them  would 
also  have  been  prior  to  it.  That  would  have  prevented  the  Murray 
lease.,  admittedly  dormant  while  the  John  White  licenses  were  current, 
from  coming  in  force  after  they  expired,  as  the  learned  commissioner 
suggests  it  did. 

I  think  that  it  is  very  dangerous  to  allow  a  registered  document  to 
extend  and  have  effect  beyond  the  boundaries  which  it  recites  upon 
its  face,  to  the  injury  of  a  person  who,  from  the  fact  of  registry,  is 
presumed  to  have  acted  to  his  prejudice  upon  the  strength  of  the  regis- 
try, and  allowed  his  license  to  expire,  merely  because  there  is  a  stake 
marked  J.  M.,  also  mentioned.  Never  (for  the  licenses  to  search 
adjoined  each  other)  could  the  lease  within  the  boundaries  of  Murray's 
license  encroach  on  the  company's  license. 

They  would  look  at  the  registry  and  the  plan  annexed  to  the  Murray 
lease  and  referred  to  therein,  showing  the  area  leased  inside  of  the 
license  to  search,  and  adjoining  the  company's  license,  and  the  stake, 
too,  on  the  plan,  all  I  suppose,  to  scale,  and  the  general  plan  required 
to  be  kept,  also  showing  the  Murray  lease  inside  of  the  license  and  out- 
side of  the  company's  license ;  and  then  it  is  to  be  said  that  this  is  all  to 
be  rejected  because  there  is  a  stake  marked  J.  M.  7  chains  44  links  from 
a  gate,  both  of  which  have  disappeared,  and  about  14  chains  from  the 
west  side  line  of  John  Murray  area,  i.  e.,  license  to  search,  whereas  it 
is  as  the  surveyor  has  located  it,  40.55  chains  from  that  line. 

Then  of  course  Murray  may  contend  that  his  license  to  search  is  not 
properly  located,  and  that  his  lease  is  wholly  within  it.  And  that  shows 
the  necessity  of  some  proper  action  in  a  court  to  enable  these  bound- 
aries to  be  determined.  So  also,  it  can  be  determined  in  that  action  as 
to  whether  the  decision  of  the  commissioner,  being  that  of  an  inferior 
court  of  limited  jurisdiction,  constitutes  an  estoppel,  and  that  will 
depend  on  the  terms  of  the  statute,  and  whether  he  had  jurisdiction  to 
decide  what  he  did,  or  whether  Mr.  Justice  Davies  has  given  the  cor- 
rect opinion.  The  decisions  of  the  commissioner  have  been  frequently 
brought  up  by  a  writ  of  certiorari,  showing  that  they  are  those  of  an 
inferior  court,  and  if  he  has  decided  anything  without  jurisdiction 
that  matter  is  open  to  collateral  attack  or  to  be  litigated  over  again. 


712  Water  and  Mineral  Cases.        [Nova  Scotia 

In  Mayor  of  London  v.  Cox,  2  E.  &  I.  App.  262,  Wiles,  J.,  said: 

"Another  distinction  is  that  whereas  the  judgment  of  a  superior 
court  unreversed  is  conclusive  as  to  all  relevant  matters  thereby  decided, 
the  judgment  of  an  inferior  court  involving  a  question  of  jurisdiction 
is  not  final.  If  the  decision  be  for  the  defendant,  there  is  nothing  to 
estop  the  plaintiff  from  suing  over  again  in  a  superior  court,  and  insist- 
ing that  the  decision  below  had  turned  or  might  have  turned  upon 
jurisdiction." 

I  also  refer  to  the  case  of  Stewart  v.  Taylor,  31  N.  S.  R.  512. 

In  my  opinion  the  appeal  should  be  allowed  with  costs,  and  the  lease 
should  be  granted  with  the  description  proposed  by  the  appellants. 

RUSSELL,  J.  The  Dominion  Coal  Company  had  a  license  to  search 
over  a  coal  area  which  became  a  first  right  on  January  26,  1906,  before 
which  time  it  was  a  second  right.  In  July,  1907,  while  this  license  to 
search  was  in  force,  an  application  was  made  for  a  lease  of  one  mile, 
the  northern  boundary  of  which  was  to  be  the  northern  boundary  of 
the  area  covered  by  the  license  to  search,  the  width  being  such  as  was 
required  to  make  up  the  one  mile  area.  Previously  to  1893  Rev.  John 
Murray  held  a  license  to  search  over  an  area  lying  to  the  north  of  the 
area  covered  by  the  license  to  search  first  mentioned,  and  it  is  common 
ground  that  the  northern  line  of  the  Dominion  Coal  Company's  area 
is  the  southern  boundary  of  the  area  covered  by  Mr.  Murray's  license 
to  search.  On  August  31,  1903,  Mr.  Murray  applied  for  a  lease, 
which  was  granted,  according  to  a  description  which  sets  out  the  starting 
point  and  the  several  courses  of  the  area,  and  closes  with  the  words, 
"being  an  area  of  one  square  mile  selected  out  of  license  to  search  held 
by  me,  containing  one  square  mile,  more  or  less,  in  manner  and  form 
as  the  said  area  is  specified  and  delineated."  The  description  also 
refers  to  a  plan  annexed,  and  the  plan  indicates  a  rectangular  piece  of 
land  bounded  southerly  on  the  north  line  of  the  Dominion  Coal  Com- 
pany's license  to  search,  and  forming  part  of  a  license  to  search  held  by 
T.  C.  Harold,  which  is  the  same  area  that  is  included  in  the  license  to 
search  held  by  Mr.  Murray,  and  already  referred  to. 

When  the  matter  of  the  Dominion  Coal  Company's  application  came 
before  the  Commissioner  of  Works  and  Mines,  some  question  seems  to 
have  arisen  as  to  the  proper  construction  of  the  lease  to  Mr.  Murray, 
which  it  is  suggested  would,  if  governed  by  the  courses  and  distances, 
extend  beyond  the  line  plotted  on  the  plan  as  the  southern  boundary 
of  the  license  to  search,  and  encroach  upon  the  land  represented  on  the 
plan  as  covered  by  the  Dominion  Coal  Company's  license  to  search, 
The  commissioner  did  not  settle  this  question,  but  merely  said  that 
"the  lease  issued  to  said  John  Murray  was  not  to  be  considered  to  be 


1907]  In  ee  Dominion  Coal  Co.  713 

in  any  way  void  or  uncertain."  The  applicants  regarded  this  as  a 
decision,  and  appealed,  but  this  court  decided  that  there  had  been  no 
appealable  decision  on  the  application,  and  quashed  the  appeal.  The 
applicants  then  applied  to  the  commissioner  to  decide  the  question, 
when  the  deputy  commissioner  sent  a  letter  to  the  company's  solicitor 
purporting  to  express  what  he  considered  to  be  the  effect  of  the  prior 
decision.  An  appeal  was  taken  from  this,  and  was  dismissed  because 
the  pronouncement  was  not  a  decision.  A  further  effort  was  made  to 
extract  a  decision,  with  the  same  result  that  followed  the  previous 
effort,  and  a  mandamus  was  then  issued  to  the  commissioner  of  works 
and  mines,  Hon.  Mr.  Drysdale,  who  had  succeeded  to  the  office,  to  com- 
pel him  to  take  up  the  case  and  decide  it.  The  decision  in  favor  of  the 
applicant  was  appealed  to  the  Supreme  Court  of  Canada  (36  N.  S.  R., 
282;  34  S.  C.  C.  328).  The  court  was  unanimous  in  dismissing  the 
appeal,  and  three  of  the  five  judges  concurred  in  an  opinion  pro- 
nounced by  Mr.  Justice  Killam,  who  expressed  no  opinion  as  to  the  cor- 
rectness of  the  decisions  of  this  court,  or  as  to  the  merits  of  the  inquiry 
before  the  Commissioner  of  Works  and  Mines.  But  Mr.  Justice  Davies 
discussed  the  validity  of  the  decision  of  this  court  on  the  last  of  the 
three  appeals  from  the  commissioner  of  works,  and  also  commented  on 
the  opinion  of  Mr.  Justice  Townshend  on  the  application  for  mandamus. 
He  did  not  agree  with  the  view  that  a  simple  "yes"  or  "no"  to  the 
application  was  all  that  was  required.  There  were  legal  questions  as  to 
the  proper  construction  of  Mr.  Murray's  lease  on  which  he  thought  "the 
commissioner  had  no  right  to  pass.  What  lands  were  legally  covered  by 
Murray's  lease  was  a  question  to  be  determined  afterwards  by  the  court 
in  a  proper  action.  No  decision  of  the  commissioner  could  either  con- 
tract or  expand  the  legal  boundaries  of  Murray's  lease." 

His  lordship  therefore  suggested  a  form  of  description  for  the  lease 
to  the  Dominion  Coal  Company  for  the  purpose  of  leaving  the  question 
of  the  proper  construction  of  Murray's  lease  open  for  decision  by  the 
court  in  a  proper  action,  and  the  honorable  commissioner  of  works,  it 
is  said  by  the  applicant's  counsel,  adopted  this  suggestion.  I  am  not  sure 
that  he  did  so,  or  intended  to  do  so.  The  express  purpose  of  the  sug- 
gestion of  Mr.  Justice  Davies  was  to  leave  the  proper  construction  of 
the  Murray  lease  an  open  question  to  be  decided  by  the  proper  court. 
He  meant  that  it  should  be  open  to  the  applicants  to  say  that  the  Murray 
lease  must  be  governed  by  the  prior  license  to  search,  and  not  extend 
beyond  it.  The  effect  of  the  commissioner's  finding  is  that  it  extends 
beyond  the  area  covered  by  the  license  to  search,  and  takes  a  part  of  the 


714  Water  and  Mineral  Cases.        [Nova  Scotia 

land  covered  by  the  Coal   Company's  license.     The  conclusion  of   his 
decision  is  as  follows : 

"I  find  that  a  portion  of  the  area  selected  and  applied  for  by  the  coal 
company  is  already  covered  by  the  Murray  lease;  that  a  lease  of  any 
such  portion  cannot  issue  to  the  coal  company;  but  a  lease  will  go  to 
the  company  of  that  portion  selected  in  their  application  for  lease  which 
lies  outside  of  the  area  described  in  said  Murray  lease." 

I  think  this  finding  is  opposed  to  the  views  of  Mr.  Justice  Davies, 
and  that  the  issue  of  a  lease  in  accordance  with  the  finding  would  defeat 
the  purpose  of  the  suggestion  made  by  that  learned  judge,  whose  idea 
was  that  the  lease  should  be  so  drawn  as  to  leave  the  question  open,  to 
be  decided  in  the  proper  action.  The  applicants  are,  however,  content 
to  take  a  lease  in  the  terms  of  the  decision:  that  is  to  say,  a  lease  of 
that  portion  selected  in  their  application  for  lease  which  lies  outside 
of  the  area  described  in  the  Murray  lease.  This  will  leave  them  free 
to  contend  that  the  Murray  lease  does  not  extend  beyond  the  boundary 
of  his  license  to  search.  But  the  present  commissioner  of  works  and 
mines  has  made  a  decision  that  he  will  only  grant  a  lease  to  the  Domin- 
ion Coal  Company,  excepting  from  the  portion  that  they  have  selected 
the  part  covered  by  the  Murray  lease,  describing  it  by  courses  and  dis- 
tances in  such  a  way  as  to  cut  out  about  half  a  mile  of  the  area  applied 
for  by  the  Dominion  Coal  Company.  The  difference  between  this  and 
what  Mr.  Justice  Davies  suggested  is  perfectly  obvious.  The  question 
which  he  thought  should  be  left  open,  namely,  whether  the  courses  and 
distances  in  so  far  as  they  include  anything  outside  of  Mr.  Murray's 
license  to  search,  were  not  falsa  demonstratio,  being  controlled  by  the 
statement  in  the  description  that  the  lease  was  to  consist  of  one  square 
mile  "selected  out  of  the  license  to  search,"  and  by  the  requirement  of 
the  law  that  it  must  not  include  anything  under  license  to  search,  as  the 
lease  so  extended  must  have  done;  this  question,  which  Mr.  Justice 
Davies  thought  should  be  left  open  for  decision  in  the  proper  action,  will 
be  closed  against  the  applicants  if  they  are  granted  a  lease  in  the  form 
now  proposed  by  the  commissioner.  They  will  have  no  title  on  which  to 
found  any  contention  as  to  the  proper  construction  of  Mr.  Murray's  lease. 
I  therefore  must  concur  in  the  opinion  of  my  learned  brother  Graham. 

MEAGHER,  J.  On  the  15th  of  April,  1905,  the  then  commissioner 
of  mines,  now  Mr.  Justice  Drysdale,  a  member  of  this  court,  upon  a 
controversy  between  the  parties  to  this  proceeding,  decided  amongst 
other  questions  before  him,  the  following: 

1.  That  it  was  not  open  to  the  company  (the  present  appellants) 
to  question  the  lease  to  Murray  (the  present  respondent)  on  the  ground 
that  it  covered  part  of  the  area  described  in  the  license  to  search  granted 
to  the  appellants  of  the  12th  of  October,  1904. 


1907]  In  ee  Dominion  Coax,  Co.  715 

The  reason  the  learned  commissioner  gave  for  that  conclusion  was 
because  the  license  mentioned  was  subsequent  in  time  to  Murray's  lease. 

2.  That  the  following  contention  by  the  company  was  not  well- 
founded,  viz.,  that  when  the  lease  to  Murray  was  issued  they  held 
licenses  to  search  applied  for  by  one  John  White,  under  date  of  January 
24,  1893,  which  were  in  force,  and  were  held  by  the  company  at  the  time 
of  the  issue  of  the  lease  to  Murray,  and  which  latter  covered  part  of 
the  area  described  in  such  license. 

The  reasons  for  the  decision  in  support  of  the  last-mentioned  conclu- 
sion by  the  learned  commissioner  were: 

"(a)  That  the  licenses  relied  on  were  allowed  to  expire  without  a 
selection  being  made  under  them,  and  without  any  application  for  a  lease 
based  thereon,  and  therefore  it  was  not  competent  for  the  company  to 
object  to  Murray's  lease; 

(b)  That  the  company's  application  being  subsequent  in  time  to 
the  lease,  they  were  not  entitled  to  urge  that  objection,  even  assuming 
the  lease  covered  part  of  such  area ; 

(c)  That  the  company's  right  to  a  lease  must  stand  upon  the  license 
under  which  it  was  made,  it  being  an  attempted  selection  of  a  square 
mile  under  their  license  applied  for  October  12,  1894;  and, 

(d)  That  a  portion  of  the  area  selected  and  applied  for  by  the  com- 
pany was  already  covered  by  the  Murray  lease,  and  a  lease  of  such 
portion  could  not  issue  to  the  (appellant)  company;  but  that  a  lease 
would  issue  of  that  portion  selected  by  their  application  for  a  lease, 
lying  outside  of  the  area  described  in  Murray's  lease." 

An  appeal  was  not  taken  from  that  decision.  It  is  therefore  conclu- 
sive as  to  all  questions  of  law  and  fact  involved  in  the  controversy 
between  the  parties  upon  which  it  was  pronounced. 

In  March,  1902,  the  same  commissioner  gave  a  decision  upon  the 
appellant's  application  in  1897  for  a  lease,  refusing  to  entertain  it  upon 
the  ground  that  his  predecessor  in  office  had  refused  it,  and  therefore  it 
was  not  open  to  him  to  deal  with  it.  The  appellants  thereupon  brought 
an  action  against  the  commissioner  for  a  mandamus,  which  resulted  in 
its  being  awarded,  and  in  pursuance  thereof  the  commissioner  enter- 
tained the  application,  and  pronounced  the  decision,  the  substance  of 
which  I  have  given  first. 

The  final  decision  in  the  action  for  a  mandamus  is  reported  in  34  S. 
C.  R.  328.  It  proceeded  upon  the  ground  that  the  commissioner's 
view  of  the  previous  decision  was  an  erroneous  one. 

The  present  appeal  is  from  a  decision  of  the  Honorable  Mr.  Pipes, 
Commissioner  of  Mines,  etc.  (now  the  Attorney  General  of  the  Prov- 
ince), dated  March  28,  1906.  intended  to  carry  into  effect  the  decision 
of  his  predecessor  above  summarized. 

The  commissioner,  from  whose  decision  the  present  appeal  was 
asserted,  did  not  possess  the  power  of  reviewing  or  varying  the  decision 


716  Water  and  Mineral  Cases.         [Nova  Scotia 

he  was  called  upon  to  give  effect  to;  being  a  mere  statutory  officer  he 
does  not  possess  any  power  which  the  statute  does  not  expressly  or  by 
necessary  implication  confer  upon  him.  The  power  to  review  is  cer- 
tainly not  expressly  given,  and  I  have  been  unable  to  find  anything 
in  the  statute  which  affords  a  suggestion  for  its  existence.  I  mention 
this  because  a  somewhat  lengthy  discussion  took  place  on  the  argument 
upon  that  subject.  It  arose,  however,  from  an  observation  made  by  a 
member  of  the  court. 

All  that  remained  for  the  succeeding  commissioner  to  do,  in  view 
of  what  had  been  decided  by  his  predecessor,  was  to  settle  the  description 
to  be  embodied  in  the  lease  to  the  appellants,  and  in  doing  that  to  be 
careful  not  to  ignore  or  contravene  the  terms  or  effect  of  his  prede- 
cessor's decision.  It  was  also  incumbent  upon  him,  in  determining  the 
form  and  limits  of  the  description  for  the  appellants'  lease,  to  see  that 
it  did  not  encroach  upon  the  limits  within  that  of  the  respondent,  and 
of  the  validity  of  which  latter  there  could  not  then  be  any  question  or 
doubt,  so  far  as  the  commissioner  was  concerned.  After  framing  the 
description  so  as  to  guard  against  encroachment  upon  the  area  covered 
by  the  respondent's  lease,  his  next  duty  was  to  see  that  in  all  other 
respects  it  conformed  to  the  appellants'  application,  and  gave  them  all 
their  application,  properly  construed,  covered. 

Reverting  for  a  moment  to  the  question  of  reversing  or  varying  Com- 
missioner Drysdale's  decision.  I  may  add  that  there  cannot  be  found 
in  the  proceedings  before  the  commissioner  (Pipes)  a  suggestion  even 
of  a  request  or  a  contention  that  he  should  or  could  review  or  disre- 
gard any  of  the  conclusions  embodied  in  the  decision  to  which  he  was 
required  to  give  effect ;  or  was  empowered  to  ignore  its  effect  upon  the 
proceeding  before  him. 

The  course  taken  before  Commissioner  Pipes  plainly  indicates  that 
the  mere  form  of  the  description  for  the  appellants'  lease  was  all  that 
was  sought  or  desired  at  his  hands.  It  was  the  only  matter  discussed, 
and  that  of  course  meant,  and  could  only  mean,  that  it  was  to  be  done 
in  the  light  of  the  earlier  decision,  and  subject  to  all  its  conclusions. 

The  appeal  now  before  this  court  is  limited  in  name  and  terms  to  the 
decision  of  Commissioner  Pipes,  as  of  course  it  must  be  in  scope  and 
effect.  The  time  has  long  gone  by  for  an  appeal  from  the  decision 
which  preceded  it. 

It  will  be  convenient  to  mention  a  few  dates.  Murray's  lease  is 
dated  October  5,  1893,  and  runs  from  the  date  of  his  application  there- 
for, viz.,  August  31,  1893;  his  application  for  a  license  (second  right) 
to  search  is  dated  December  9,  1890.  The  description  in  his  application 
for  the  lease  is  the  same  as  that  in  the  lease  itself. 


1907]  In  ke  Dominion  Coal,  Co.  717 

The  appellants'  rights  must,  under  the  earlier  decision,  and  the  facts 
as  well,  depend  upon  their  application  of  October  12,  1894,  and  which, 
by  reference,  applies  thereto  the  description  in  the  application  under 
date  of  July  25,  1894. 

The  validity  or  scope  or  effect  of  the  respondent's  lease  other  than 
in  the  matter  of  the  description  in  it,  in  respect  to  extent  and  location, 
be  it  correct  or  otherwise,  cannot  be  inquired  into  upon  this  appeal, 
for  the  reason  that  this  court  is  merely  exercising  an  appellate  juris- 
diction under  the  Mines  Act,  and  not  its  original  or  inherent  jurisdic- 
tion. Until  attacked  by  a  proceeding  originating  in  this  court,  its  valid- 
ity cannot  be  questioned;  certainly  not  by  any  course  the  commissioner 
might  take  upon  a  controversy  such  as  that  which  gave  rise  to  the  present 
appeal. 

When  the  appellants,  in  January,  1906,  applied  to  the  commissioner, 
under  the  decision  of  Commissioner  Drysdale,  for  their  lease,  they  sub- 
mitted a  description  in  the  form  they  desired  it,  thus  showing  their 
conception  of  the  situation  to  be  as  I  have  stated,  viz.,  that  it  was 
merely  a  proceeding  to  give  effect  to  the  decision  just  mentioned. 

The  description  so  submitted  was  filed  of  record  in  the  commissioner's 
office,  and  he  was  moved  by  both  parties  to  determine  its  form  and 
limits  accordingly. 

The  commissioner,  for  valid  and  sufficient  reasons,  I  assume,  subse- 
quently ordered  a  survey  of  the  locus  to  be  made  by  an  officer  of  his 
department,  and  one  was  accordingly  made.  The  course  thus  taken  does 
not  appear  to  have  been  objected  to  at  any  stage  of  the  proceedings  by 
any  of  the  parties.  It  was,  however,  mildly  suggested  during  the  argu- 
ment before  us,  that  it  was  scarcely  a  regular  proceeding. 

Both  parties  were  notified  of  the  time  of  the  survey,  and  both  were 
represented  at  it.  It  appears  to  have  been  on  the  part  of  the  commis- 
sioner a  merely  advisory  proceeding,  intended  to  aid  him  and  the  parties 
too,  I  assume,  in  applying  those  of  the  descriptions  which  called  for 
examination;  and  therefore  in  itself  did  not  settle  the  facts.  It  was 
not  binding  upon  the  commissioner — I  mean  in  the  sense  of  controlling 
his  conclusions  upon  the  facts  necessary  to  be  determined  by  him.  It 
afforded  him  material,  however,  for  a  better  understanding  of  the  ques- 
tions he  had  to  decide  than  the  mere  descriptions  themselves  did. 

The  survey  affords  evidence  of  having  been  carefully  and  scientific- 
ally made  after  examination  of  the  ground  and  everything  else  which 
bore  upon  the  situation,  including  the  various  applications  and  descrip- 
tions relating  to  the  areas  claimed  and  in  controversy,  as  well  as  others 
adjoining  or  near  them. 

According  to  the  description  fixed  by  the  commissioner,  which  prac- 
tically, if  not  literally,  followed  the  report  of  the  surveyor,  it  begins 


718  Water  and  Mineral  Cases.        [Nova  Scotia 

at  an  iron  post  in  the  southern  boundary  of  Murray's  leased  area,  and 
lies  on  the  southern  side  and  western  end  of  that  area.  So  that  wherever 
Murray's  leased  plot  is,  the  appellants'  area  abuts  on  its  southern  side 
and  western  end.  It  certainly  could  not,  as  I  have  already  pointed  out, 
be  permitted  to  encroach  upon  it. 

If  any  dispute  should  arise  as  to  the  precise  location  of  the  respond- 
ent's lease  upon  the  ground,  or  the  true  construction  of  the  description 
in  it,  it  can,  I  suppose,  be  settled  hereafter  by  a  suit  in  this  court  to 
determine  and  declare  the  respective  rights  of  the  present  litigants  under 
their  respective  leases.  At  present  the  appellants  have  no  title — I  mean 
no  formal  title,  sufficient  to  enable  them  to  bring  a  suit  in  the  aspect 
mentioned  upon  it  against  the  respondent  successfully. 

Whatever  right  or  necessity  may  exist  for  seeking  the  aid  of  the  gen- 
eral powers  of  this  court  to  determine  any  dispute  between  these  liti- 
gants which  may  arise  in  respect  to  this  area,  or  their  rights  therein  (as 
to  which  I  am  not  called  upon  to  express  an  opinion),  I  am  unable  to 
discover  any  valid  reason  for  doubting  that  the  commissioner  was  entitled 
to  exercise  the  jurisdiction  the  statute  gave  him,  and  which  both  parties 
invoked,  and  thus  determine  the  description  in  dispute ;  and  to  that 
end,  if  there  was  uncertainty  or  ambiguity,  or  indefiniteness  in  the 
material  from  which  he  was  required  to  determine  such  description, 
to  direct,  as  he  did,  a  survey  by  a  sworn  officer  of  his  department. 

To  settle  and  adjust  the  description  so  as  on  the  one  hand  to  give 
the  appellants  the  full  benefit  of  their  description,  as  far  as  was  just 
and  reasonably  practicable,  and  on  the  other,  to  avoid  encroachment 
upon  the  area  covered  by  the  respondent's  lease,  was  one  of  the  statu- 
tory duties  imposed  upon  the  commissioner;  to  him  alone  that  task, 
where  controversy  exists  between  parties  in  respect  to  applications  for 
territory  under  the  Mines  Act,  has  been  specially  committed  by  the 
legislature.  No  title  can  formally  pass  under  the  statute  to  the  appellants 
until  the  commissioner  determines  the  description  the  grant  shall  contain , 
and  this  court  cannot  take  the  matter  out  of  his  hands  and  determine  it. 
Of  course,  if  he  refused  to  proceed,  it  would  compel  him,  as  it  com- 
pelled his  predecessor,  by  mandamus  to  hear  and  adjudicate  upon  it. 
At  page  336  of  the  report  cited,  Killam,  J.,  said,  referring  to  the  com- 
missioner: 

"It  was  imperative  upon  him  to  exercise  the  jurisdiction  when  called 
upon  to  do  so  by  a  party  interested  and  having  the  right  to  make  the 
application.  Rex  v.  Havering  Atte  Bower,  5  B.  &  Aid.,  691 ;  Macdougall 
v.  Paterson,  11  C.  B.  755,  and  Julius  v.  The  Lord  Bishop  of  Oxford, 
5  A.  C.  214." 

So  far  as  my  memory  and  my  notes  of  the  argument  enable  me  to 
speak,  the  question  of  want  of  jurisdiction  on  the  part  of  the  commis- 


1907J 


In  re  Dominion  Coal.  Co.  719 


sioner,  discussed  by  my  learned  brother  Graham,  was  not  raised  upon 
the  argument  except  by  my  learned  brother  himself.  Apart  from  that, 
and  in  view  of  the  powers  and  duties  of  the  commissioner,  I  do  not 
well  see  how  it  could  have  been  successfully  urged. 

When  the  commissioner  has  before  him  rival  applications  upon  which, 
in  the  performance  of  his  statutory  duties,  he  has  to  pronounce,  he 
must,  of  course,  pass  upon  every  question,  be  it  fact  or  law  (including 
the  construction  of  the  descriptions  in  the  applications  relevant  to  the 
inquiry  before  him,  and  their  application  in  respect  to  monuments, 
courses  and  distances,  and  whether  they  involve  questions  coming  under 
the  term  falsa  demonstrate,  or  not)  which  arises  in  the  controversy,  and 
necessary  to  be  determined  upon  the  inquiry.  In  dealing  with  the  con- 
troversy before  him  the  commissioner,  of  necessity,  had  to  regard  the 
terms  of  the  description  contained  in  the  respondent's  lease,  and  had 
to  settle  its  meaning  and  extent  as  well  as  its  location  upon  the  ground, 
so  far  as  was  necessary  to  enable  him  to  apply  and  settle  the  appel- 
lants' description.  If  it  were  otherwise,  the  moment  he  encountered 
a  leeal  question  he  would  be  forced  to  decline  jurisdiction.  In  such  a 
case~  if  mandamus  would  not  lie  to  compel  him  to  proceed  and  determine 
the  controversy,  this  court  would  have  to  take  up  the  matter  at  the  point 
whe-e  he  left  off,  and  thus  assume  the  jurisdiction  which  the  statute 
specially,  and  I  think  exclusively,  in  the  first  instance,  conferred  upon 
the  commissioner.  But  if  it  is  true  that  he  is  not  vested  with  the  power 
of  determining  legal  questions  such  as  those  adverted  to,  then  of  course 
mandamus  would  not  lie  to  compel  him  to  hear  and  determine  them. 

The  intention  of  the  Mines  Act  is  that,  subject  to  the  general  juris- 
diction of  this  court  in  respect  to  conflicting  titles  and  rights  under 
them,  and  to  the  appellate  and  other  powers  given  to  it  by  that  enact- 
ment, the  granting  of  titles  under  its  provision  is  vested  in  the  crown, 
to  be  exercised  by  the  commissioner  of  mines  as  its  representative,  and 

not  by  this  court.  . 

It  is  true  that  the  commissioner  could  not,  by  any  decision  of  his, 
contract,  vary,  or  expand  the  proper  boundaries  of  Murray's  lease. 
Both  he  and  the  crown,  except  where  otherwise  specially  authorized 
by  the  statute,  were  functus  as  to  it ;  but  surely  that  fact  did  not  deprive 
the  commissioner  of  the  power,  in  deciding  upon  the  area  which  the 
crown  might  lawfully  grant  under  the  appellant's  application,  to  exam- 
ine the  description  in  the  Murray  lease,  and  say  where,  as  a  matter  of 
law  and  fact,  its  true  location  was,  so  as  to  enable  him  to  avoid,  in  the 
description  he  was  about  to  settle,  encroaching  upon  Murray's  leased 
area,  and  yet  give  the  appellants  all  the  area  their  application  called  for, 
so  far  as  was  legally  practicable. 


720  Water  and  Mineral  Cases.         [Nova  Scotia 

If  the  description  of  the  grant  made  under  the  latter  invaded  the 
respondent's  title,  this  court  clearly  possesses  jurisdiction  to  protect 
the  latter's  rights  against  the  title  so  attempted  to  be  conferred.  In 
such  and  similar  cases,  as  well  as  in  cases  of  forfeiture  under  the  statute, 
and  for  nonperformance  of  the  conditions  called  for,  no  one  will  question 
the  jurisdiction  of  this  court  to  interfere  and  adjust  and  determine  the 
rights  involved,  and  redress  wrongs  occasioned  to  holders  of  titles.  For 
the  purposes  of  this  decision  it  is  not  necessary  to  say  more  than  that 
the  jurisdiction  of  the  court  does  not  arise  when,  nor  merely  because, 
difficult  legal  questions  may  confront  the  commissioner  when  dealing 
with  applications,  under  the  Mines  Act  before  him,  which  may  be  more 
or  less  conflicting;  nor  does  his  jurisdiction  cease  in  such  a  contingency. 
If  the  intention  of  the  statute  was  that  he  should  stay  his  hand  upon 
any  serious  legal  difficulty  arising,  one  would  naturally  expect  a  pro- 
vision giving  jurisdiction  to  some  legal  tribunal  over  the  matter,  in 
substitution  for  the  commissioner;  but  no  such  provision  exists.  It 
was  a  purely  legal  question  the  commissioner  encountered  in  1902  when 
he  refused  to  entertain  the  appellants'  application;  nevertheless,  the 
court  compelled  him  to  hear  and  determine  the  controversy. 

As  to  Lockhart  v.  Mott,  this  court  sought  to  invest  the  commissioner 
with  a  power  not  merely  to  determine  priority  of  applications,  but  to 
clothe  him  with  equitable  jurisdiction  to  adjudicate  upon  questions  of 
good  faith,  fraud,  and  over-reaching;  and  thus,  perhaps,  destroy  the 
priority  which  the  statute  expressly  gave  the  first  applicant.  More- 
over, this  court,  though  perhaps  not  in  terms,  yet  in  effect,  assumed  that 
the  statutory  appeal  from  the  commissioner  brought  into  operation  its 
original  as  well  as  its  appellate  powers,  under  the  Mines  Act.  The 
decision  of  the  privy  council  fortunately  put  an  end  to  both  theories.  It 
may  be  correct  to  say  (but  I  do  not  so  hold  at  present)  that  this  court, 
on  a  proper  case,  could  restrain  parties  from  making  or  urging  upon 
the  commissioner,  applications  for  titles  under  the  statute;  but  if  so, 
this  case  does  not  possess  any  element  warranting  its  interference  with 
the  commissioner,  who,  under  the  statute,  is  not  only  entitled,  but  is 
obliged  to  investigate  and  pass  upon  all  questions  necessary  to  determine 
the  controversy  without  any  direction  from  this  court  or  any  interfer- 
ence or  control  over  him  by  it.  The  court  has  never  done  so,  and  I 
am  not  aware  of  any  instance  where  it  was  invited  to  do  so.  Leases 
and  other  titles,  it  is  true,  have  been  attacked,  and  so  also  have  for- 
feitures and  titles  founded  upon  adjudications  by  the  commissioner  of 
the  forfeiture  of  prior  titles  been  impeached  and  set  aside  by  suits  in 
this  court;  but  none  of  the  litigation  referred  to,  so  far  as  I  am  aware, 
has  gone  as  far  as  what  is  suggested  might  be  done  in  this  case. 


1907]  In  ke  Dominion  Com,  Co.  721 

It  is  suggested  that  the  surveyor,  McKenzie,  C.  E.,  adopted  the  theory 
of  the  deputy  commissioner,  viz.,  that  the  Murray  lease  was  properly 
laid  off  upon  the  ground.  This  is  said,  I  suppose,  to  impair  the  correct- 
ness of  his  work.  There  is  no  proof  that  I  can  perceive  to  sustain  that 
view.  On  the  contrary  he  seems  to  have  made  a  full  and  complete 
survey. 

The  presence  at  the  survey  of  Mr.  C.  M.  O'Dell,  C.  E.,  a  man  of 
very  considerable  eminence  in  his  profession,  representing  the  appellants, 
ought  to  be  a  sufficient  assurance  that  the  survey  was  a  full  and  com- 
plete one,  and  accurately  made,  and  that  assurance  is  strengthened  by 
the  fact  that  neither  before  the  commissioner  nor  before  this  court, 
so  far  as  I  remember,  was  any  attack  made  upon  that  survey,  or  the 
method  pursued  in  making  it.  Mr.  O'Dell  was  familiar  with  the  ground 
and  the  descriptions  long  before  that  survey,  and  had  himself  surveyed 
at  least  a  portion  of  it,  if  not  the  whole,  and  had  made  a  plan  of  it. 

I  am  unable  to  conclude  that  there  is  error  in  the  decision  under 
review,  and  therefore  the  appeal  should,  in  my  opinion  fail. 


Wu  &  M.— 46 


722 


Watee  and  Mineral  Cases.      [United  States 


UNITED  STATES  v.  MTJNDAY  et  al. 

[Circuit  Court  W.  D.    Washington,  N.  D.,  April  6,  1911.] 
186  Fed.  375. 

1.  Crimes — Federal   Law. 

The  only  crimes  punishable  under  federal  law  are  those  denned  by  the  laws 
enacted  by  congress. 

2.  Conspiracy — Federal  Law. 

The  elements  of  the  crime  of  conspiracy  under  United  States  laws  are  (1)  an  object 
which  must  be  the  commission  of  an  offense  against  the  United  States  to  defraud  the 
United  States;  (2)  a  plan  of  accomplishment;  (3)  an  agreement  for  co-operation;  (4) 
an  overt  act  by  a  conspirator  to  effect  the  object  of  the  conspiracy. 

3.  Coal  Lands — Alaska — Federal  Statutes. 

The  restrictions  of  section  2350  of  United  States  Revised  Statutes  relating  to 
entries  upon  coal  lands  held  not  to  be  imported  into  the  Act  of  April  28,  1904,  relating 
to  coal  lands  in  Alaska,  the  latter  act  being  subsequent  and  therefore  paramount  to 
the  former. 

4.  Same — Right  to  Sell  before  Patent  Issued. 

A  locator  of  coal  lands  in  Alaska  has  the  right  to  sell  or  mortgage  his  claims 
before  obtaining  a  patent  and  his  vendee  if  a  citizen  of  the  United  States  or  a 
group  of  citizens  may  receive  the  patent. 

5.  Same — Entries — Dummies. 

In  land  office  practice  dummies  are  either  fictitious  persons  or  those  having  no 
interest  who  permit  the  use  of  their  names  for  the  perpetration  of  a  fraud  and  sign 
papers  and  make  affidavits  perfunctorily. 

6.  Same. 

One  who  opens  or  improves  a  coal  mine  in  Alaska,  locates  a  claim,  marks  ita 
lines  and  corners,  and  posts  and  records  a  notice  in  accordance  with  the  statute, 
and  subsequently  sells  or  mortgages  the  same,  is  not  a  dummy  entry  man. 

7.  Same — Foreign  Corporations. 

A  foreign  corporation  can  not  lawfully  acquire  or  hold  a  coal  claim  in  Alaska 
either  in  its  corporate  name  or  in  the  name  of  an  agent  or  trustee. 

Criminal  prosecution  of  Charles  F.  Munday,  Archie  W.  Shiels  and  Earl 
E.  Siegley  by  indictment  charging  conspiracy  to  fraudulently  acquire 
coal  lands  in  Alaska.    Indictment  quashed. 


NOTE. 
Overt  Act  as  Essential  to  Conspiracy. 

Conspiracy  at  common  law  is  defined 
as  a  combination  of  two  or  more  persons 
by  concerted  action  to  accomplish  a 
criminal  or  unlawful  purpose,  or  some 
purpose  not  in  itself  criminal  by  crimi- 
nal or  unlawful  means.  Pettibone 
v.  U.  S.,  148  U.  S.  197,  37  L.  Ed.  419; 
Spies  v.  People,  122  111.  1,  6  Am.  Crim. 


Rep.    570,    6    Notes    111.    Rep.,    p.    131, 
par.  5;  McClain,  Crim.  Law,  §  953. 

At  common  law  the  crime  is  completed 
when  the  conspiracy  is  entered  into 
without  the  commission  of  any  act  in 
furtherance  of  the  object.  U.  S.  v. 
Hirsch,  100  U.  S.  33,  25  L.  Ed.  539; 
Bannon  v.  U.  S.,  156  U.  S.  464,  39  L. 
Ed.  494,  9  Am.  Crim.  Rep.  338;  Arthur 
v.  Oakes,  11  C.  C.  A.  209,  63  Fed.  310, 
9  Am.   Crim.   Rep.   184;    Landingham  v. 


1911] 


United  States  v.  Munday  et  al. 


723 


B.  D.  Townsend  and  S.  R.  Rush,  State  Assistant  Attorney  General. 

For   defendant   Munday — Blaine,   Tucker   &   Hyland   and   Walter   S. 
Fulton. 

For  defendant  Seigley — Kerr  &  McCord. 

For  defendant  Shiels — Dorr  &  Hadley. 

For  defendants — E.  C.  Hughes. 

HANFORD,  District  Judge.  The  government  prosecutes  the  defend- 
ants by  an  indictment  founded  upon  section  5440  of  the  Revised  Statutes 
of  the  United  States,  charging  them  as  criminal  conspirators.  A  jury 
having  been  impaneled  and  sworn  to  try  the  case,  counsel  for  the  gov- 
ernment made  an  opening  statement,  giving  an  outline  of  the  facts 
which  the  government  relies  upon  to  sustain  the  charge.  His  statement, 
however,  consisted  of  a  mere  reading  of  the  indictment.  After  a  wit- 
ness had  been  called  and  sworn  to  testify,  counsel  for  the  defendants 
interposed  an  objection  to  the  introduction  of  any  evidence,  on  the 
ground,  as  they  allege,  that  the  indictment  is  insufficient  to  support  a 
judgment  adverse  to  their  clients,  and  by  argument  supporting  their 
objection  they  have  presented  the  concrete  question  whether  the  con- 
spiracy charged  is  criminal  or  innocent.  In  the  consideration  and  decis- 
ion of  the  question  submitted,  it  will  be  assumed  that  the  indictment  is 
a  fair  and  complete  statement  of  the  government's  case;  that  is  to  say, 
it  specifies  the  crime  intended  to  be  charged  with  definiteness  and  cer- 
tainty, and  contains  a  general  outline  of  the  chain  of  circumstances  and 
the  facts  which  the  evidence  to  be  offered  will  prove,  or  tend  to  prove. 

Elements  of  Criminal  Conspiracy. 

The  only  crimes  punishable  under  federal  law  are  those  defined  by 
the  laws  enacted  by  congress.  Therefore  it  must  be  kept  in  mind  that 
the  prosecution  in  this   case   is   for  an   alleged   statutory  crime.     The 


State,  49  Ind.  186,  1  Am.  Crim.  Rep. 
105;  Commonwealth  v.  Warren,  6  Mass. 
74. 

By  statute  in  several  states  and  by 
section  5440,  United  States  Revised  Stat- 
utes, it  is  expressly  required  that  an 
overt  act  shall  have  been  committed  in 
pursuance  of  the  conspiracy  in  order  to 
complete  the  offense. 

The  language  of  the  section  is:  "If 
two  or  more   persons   conspire  either  to 


commit  any  offense  against  the  United 
States,  or  to  defraud  the  United  States 
in  any  manner  or  for  any  purpose,  and 
one  or  more  of  such  parties  do  any  act 
to  effect  the  object  of  the  conspiracy,  all 
the  parties  to  such  conspiracy  shall  be 
liable,"  etc.  Hyde  v.  Shine,  199  U.  S. 
62,  50  L.  Ed.  90;  Diamond  v.  Shine, 
199  U.  S.  88,  50  L.  Ed.  99;  U.  S.  v. 
Reichert,  32  Fed.  142;  U.  S.  v.  Milner, 
36  Fed.  890. 


724 


Water  and  Mineral  Cases.      [United  States 


elements  of  the  crime  of  conspiracy  under  the  laws  of  the  United  States 
are:  (i)  An  object  to  be  accomplished  which  must  be  (a)  the  com- 
mission of  an  offense  against  the  United  States;  (b)  to  defraud  the 
United  States.  (2)  A  plan  or  scheme  embodying  means  to  accom- 
plish the  object.  (3)  An  agreement  or  understanding  between  two  or 
more  persons  whereby  they  become  definitely  committed  to  co-operate 
for  the  accomplishment  of  the  object  by  the  means  embodied  in  the 
scheme,  or  by  any  effectual  means.  (4)  An  overt  act  by  one  or  more 
of  the  conspirators  to  effect  the  object  of  the  conspiracy. 

The  Indictment  Analyzed. 

The  indictment  names  the  three  defendants  on  trial  and  one  Alger- 
non H.  Stracey  as  the  persons  implicated  in  the  conspiracy  charged. 
King  County,  in  the  State  of  Washington,  and  the  1st  day  of  May,  1905, 
are  specified  as  the  place  and  time  of  the  formation  of  the  alleged  crim- 
inal combination. 

The  general  charge  of  the  indictment  is  that  the  four  persons  named, 
with  divers  other  unknown  persons,  did  unlawfully  (omitting  other 
adjectives)  combine,  confederate,  and  agree  together  to  defraud  the 
United  States  of  America  of  the  use  and  possession  of,  and  title  to, 
large  tracts  of  valuable  coal  lands  then  and  there  part  of  the  public 
domain  of  the  United  States,  situated  within  the  Kayak  recording  dis- 
trict of  Alaska,  being  contiguous  tracts  and  parcels  of  coal  lands  col- 
lectively and  commonly  known  as  the  "Stracey  group."  The  indictment 
specifies  that  the  lands  referred  to  were  subject  to  location  and  entry 
under  the  coal  land  laws  of  the  United  States  applicable  to  Alaska  and 
subject  to  the  several  attempted  locations  and  entries  in  a  subsequent 
part  of  the  indictment  specified,  except  for  the  unlawful,  fraudulent, 
false,  feigned,  and  fictitious  character  of  said  attempted  locations  and 
entries;  and  that  the  value  of  said  lands  is  $10,000,000. 

The  indictment  contains  other  specifications  of  the  nature  of  the 
intended  fraud,  some  of  which,  however,  are  comprehended  within 
the  general   charge  of  the  purpose  to   defraud   the  United   States  by 


But  even  under  section  5440  the  com- 
bination is  the  gist  of  the  offense.  U. 
S.  v.  Hirsch,  100  U.  S.  33,  25  L.  Ed. 
539;  Pettibone  v.  U.  S.,  148  U.  S.  197, 
37  L.  Ed.  419.  Proof  of  a  single  overt 
act  is  sufficient  and  several  overt  acts 
will  not  constitute  more  than  one  offense 
where  they  are  done  under  a  single  com- 
bination. U.  S.  v.  Howell,  56  Fed.  21; 
U.  S.  v.  Cassidy,  67  Fed.  698;  U.  S.  v. 


Debs,  65  Fed.  210;  McClain,  Crim.  Law, 
§  966. 

An  overt  act  need  not  be  proved 
against  every  member  of  the  conspiracy, 
or  a  distinct  act  connecting  him  with 
the  combination  be  alleged.  Bannon  v. 
U.  S.,  156  U.  S.  464,  39  L.  Ed.  494,  9  Am. 
Crim.   Rep.  338. 

If  the  conspiracy  be  entered  into 
within  the   limits  of  the  United   States 


1911] 


United  States  v.  Munday  et  al. 


725 


devesting  the  government  of  its  title  to,  and  proprietary  rights  in,  the 
coal  lands  designated,  and  therefore  do  not  merit  additional  mention. 
Other  specifications  of  fraud  are  to  the  effect  that  the  scheme  included 
interference  with  the  administration  of  the  land  business  of  the  United 
States  by  deceiving  the  officers  and  agents  of  the  government,  in  order 
to  induce  them  to  approve  the  several  locations  and  entries  and  issue 
patents  conveying  the  title  to  the  coal  lands  designated. 

The  gravamen  of  the  charge  is  an  unlawful  conspiracy  to  obtain  coa! 
land  in  Alaska  for  the  Alaska  Development  Company,  a  corporation  of 
the  State  of  Washington,  and  the  Pacific  Coal  &  Oil  Company,  reputed 
to  be  a  corporation  organized  and  existing  under  the  legal  authority 
of  some  foreign  government,  to  wit,  the  Dominion  of  Canada  or  one 
of  its  provinces ;  the  quantity  of  land  so  to  be  obtained  for  said  corpo- 
rations being  in  excess  of  the  quantity  which  the  law  permits.  The 
several  tracts  of  coal  land  to  be  acquired  pursuant  to  the  alleged  con- 
spiracy are  forty  in  number,  each  being  specifically  described  and  identified 
as  a  coal  claim  bearing  the  name  of  the  individual  locator  and  claimant 
thereof  and  by  a  serial  number  and  by  the  area  thereof  expressed  in 
acres  and  fractions  of  an  acre ;  each  claim  being  approximately  one- 
fourth  of  a  section. 

The  plan  or  scheme  embodying  the  means  whereby  the  object  of  the 
alleged  conspiracy  was  to  be  accomplished  are  set  forth  with  particu- 
larity in  articulated  paragraphs  which  I  have  epitomized  as  follows:  The 
objects  and  purposes  of  said  unlawful  conspiracy  were  to  be  furthered 
and  effected  by  means  of  unlawful,  fraudulent,  false,  feigned,  and  ficti- 
tious locations,  notices  of  locations,  preferential  rights  to  purchase, 
applications  to  enter  and  purchase,  and  final  entries  and  purchases  under 
the  coal  land  laws  of  the  United  States;  by  cunning  persuasion  and 
promises  of  pecuniary  reward  and  other  corrupt  means  persons  severally 
qualified  by  law  (except  as  stated)  should  be  procured  and  induced  to 
make  the  fictitious  locations  and  fraudulent  entries  of  said  tracts  of 
coal  lands  ostensibly  for  the  exclusive  use  and  benefit  of  themselves, 
respectively,  but  in  truth  and  in  fact  for  the  use  and  benefit  of  the  Alaska 
Development  Company  and  the  Pacific  Coal  &  Oil  Company.  The 
possession  of  all  of  said  coal  lands  was  to  be  held  and  the  use  thereof 


and  within  the  jurisdiction  of  the  court, 
the  crime  is  complete,  and  the  subsequent 
overt  act  may  be  done  anywhere.  Dealy 
v.  U.  S.,  152  U.  S.  539,  38  L.  Ed.  545, 
9  Am.  Crim.  Rep.  161. 

The  provision  for  an  overt  act  merely 
affords  a  locus  penitentiae  giving  oppor- 
tunity  to   one   or   all   of   the   parties   to 


abandon  their  design  and  thus  avoid  the 
penalty  prescribed  by  statute.  U.  S.  v. 
Britton,  108  U.  S.  199,  27  L.  Ed.  698; 
Bannon  v.  U.  S.,  156  U.  S.  464,  39  L. 
Ed.  494,  9  Am.  Crim.  Rep.  338 ;  Dealy  v. 
TJ.  S.,  152  U.  S.  539,  38  L.  Ed.  545,  9  Am. 
Crim.  Rep.  161. 


726  Water  and  Mineral  Cases.      [United  States 

enjoyed  by  persons  ostensibly  as  the  agents  of  and  for  the  benefit  of 
the  individual  claimants,  respectively,  but  in  truth  and  in  fact  as  the 
agent  of,  and  for  the  use  and  benefit  of,  said  corporations.    Each  claim- 
ant should  be  induced,  persuaded,  and  procured  to  support  his  unlawful 
location  and   fraudulent  entry  by  affidavits   regular  in   form  but  con- 
taining false  representations ;  that  each  of  them,  respectively,  had  opened 
and  improved  a  coal  mine  and  expended  moneys  in  that  behalf   and 
staked  out  and  located  a  coal  claim,   including  within   its   boundaries 
said  coal  mines,  and  had  taken  and  held  possession  of  said  coal  claims 
and  intended  to  purchase  from  the  United  States  under  and  pursuant 
to  the  coal  land  law  applicable  to  Alaska  the  tract  of  land  so  pretended 
to  have  been  located.     By  said  means,  the  officers  of  the  United  States 
having  charge  of  public  land  matters  should  be  deceived  and  induced 
to  accept,  file,  and  record  notices  of  location  and  affidavits  in  the  land 
office,  and  to  segregate  said  coal  lands  from  the  public   domain,   and 
withdraw  the  same  from  public  entry  under  any  of  the  public  land  laws 
of  the  United  States,  and  rights  should  thereby  be  acquired  ostensibly 
for  the  benefit  of  the  persons  making  such  false  affidavits,  but,  in  fact, 
for  the  said  corporations.     Thereafter  said  coal  land  claimants,  respec- 
tively, should  hold  and  exercise  their  pretended  and  unlawful  preferential 
rights  to  purchase  said   coal  lands   ostensibly   for  their  own  use   and 
benefit,   but   in    fact    for   the   said   two   corporations.      Thereafter   said 
claimants  should,  in  the  form  and  manner  provided  by  law,  make  appli- 
cations to  enter  and  purchase  said  coal  lands  ostensibly  for  their  own 
use  and  benefit,  but,  in  fact,  for  the  said  two  corporations,  and  thereby 
the  said  corporations  should  receive  and  enjoy  the  benefits  of  a  greater 
number  of  locations  and  entries  of  coal  lands,  and  for  a  greater  quantity 
of  coal  lands  than  allowed  by  law.     The  respective  shares  and  interests 
of  said  Alaska  Development  Company  and  of  said  Pacific  Coal  &  Oil 
Company  in  the  fruits  and  benefits  of  the  unlawful  conspiracy  were  to 
be  adjusted  so  that  said  Alaska  Development  Company  should  receive 
and  enjoy  the  title,  use,  and  value  of  all  of  said  coal  lands  subject  to  a 
contract  entered  into  between  said  two  corporations  prior  to  the  trans- 
actions, and  which  was  in  full  force  and  effect  at  and  during  all  of  the 
times  mentioned,  by  which  it  was  provided  that,  as  between  said  corpo- 
rations, the  Pacific  Coal  &  Oil  Company  should  be  entitled  to  take  and 
hold   possession   of   said   coal   lands,   operate   the   mines    thereon,    and 
extract  the  coal  therefrom,  paying  a  royalty  therefor  to  said  Alaska 
Development  Company,  and  have  an  option  to  purchase  all  of  said  coal 
lands  within  certain  stated  times  and  for  certain  stated  prices. 

Overt  acts  are  charged,  substantially,  as  follows :    That  after  the  for- 
mation of  said  unlawful  conspiracy,  and  in  pursuance  of,  and  to  effect 


1911]  United  States  v.  Munday  et  al.  727 

its  object,  Archie  W.  Shiels,  one  of  the  defendants,  did  unlawfully  on 
specified  dates  cause  each  of  the  said  coal  claims  to  be  surveyed  by  a 
mineral  surveyor  of  the  United  States.  Said  survey  being  intended  for 
use  in  applications  to  enter  and  purchase  the  said  coal  claims  by  the 
respective  claimants  thereof,  and  thereafter  in  further  pursuance  of, 
and  to  effect  the  object  of  said  unlawful  conspiracy,  the  said  Shiels  did 
knowingly  on  specified  dates  file  and  cause  to  be  filed  in  the  office  of 
the  Surveyor  General  of  the  United  States  for  Alaska  each  and  all  of 
the  said  official  surveys  and  the  field  notes  thereof.  The  indictment 
then  sets  forth  in  tabulated  form  a  list  of  the  claims  surveyed,  with  the 
dates  on  which  the  surveys  were  made  and  the  filing  dates,  said  claims 
being  forty  in  number  and  identified  by  the  names  of  the  claimants  as  the 
same  claims  previously  mentioned.  The  indictment  then  alleges  a  num- 
ber of  other  overt  acts  in  furtherance  of  and  to  consummate  the  con- 
spiracy, indicating  that  the  scheme  was  carried  out  to  the  extent  of  filing 
application  to  purchase  said  claims  by  each  of  the  locators  and  payment 
of  the  government's  price  to  the  officers  of  the  local  land  office  for  the 
district  of  Alaska  in  which  the  lands  are  situated,  and  that  in  the  trans- 
action of  said  business  the  defendants  or  one  of  them  acted  as  attorney 
or  agent  for  all  of  the  locators.  The  indictment  alleges  other  trans- 
actions subsequent  to  the  ist  day  of  January,  19 10,  including  written 
communications  referring  to  money  advanced  by  the  Pacific  Coal  &  Oil 
Company  for  which  security  was  to  be  taken  in  the  form  of  mortgages 
to  be  executed  by  the  several  entry  men  and  payments  of  money  to  the 
receiver  of  the  land  office  at  Juneau  in  payment  of  the  government  price 
for  a  number  of  said  coal  claims.  Finally,  the  indictment  charges  that 
on  a  specified  date  subsequent  to  January  1,  1910,  one  of  the  defendants 
paid  to  the  receiver  of  the  land  office  at  Juneau  the  government  price 
for  thirty-eight  of  said  coal  claims. 

It  is  to  be  specially  noted  that  the  indictment  does  not  charge  that 
the  several  locators  were  dummies;  on  the  contrary,  it  is  expressly 
averred  that  they  were  each  of  them  competent  to  make  entries  of  coal 
lands  in  Alaska,  and  not  disqualified  except  for  particular  reasons  in  the 
indictment  specified,  and  it  is  not  charged  as  one  of  those  particular  rea- 
sons that  their  locations  were  illegal  because  of  any  failure  to  do  the 
things  which  the  law  makes  essential  to  the  acquisition  of  rights  as 
locators  of  coal  land,  nor  that  more  than  one  coal  right  was  to  be,  or  had 
been,  exercised  by  any  one  locator.  To  avoid  possible  complications 
from  the  enactment  of  the  Criminal  Code  which  went  into  effect  on  the 
ist  day  of  January,  1910,  counsel  for  the  government  voluntarily 
announced  an  abandonment  by  the  government  of  the  charges  contained 
in  the  indictment  of  overt  acts  subsequent  to  that  date  as  elements  of 
the  crime  with  which  the  defendants  are  charged. 


728  Water  and  Mineral  Cases.       [United  States 

Provisions  of  the  Statute  Affecting  Coal  Claims  in  Alaska. 

For  convenience  of  reference,  I  will  use  Pierce's  Federal  Code,  being 
a  compilation  of  all  the  statutes  of  the  United  States  of  a  general  and 
permanent  nature  in  force  March  4,  1907,  with  a  supplement  continuing 
the  compilation  to  January  1,  1910.  In  this  volume  the  coal  land 
laws  of  the  United  States  necessary  to  be  considered  in  the  determina- 
tion of  the  question — whether  the  defendants  intended  or  attempted  to 
perpetrate  a  fraud — are  set  forth  in  a  group  in  sections  numbered  con- 
secutively from  10,044  to  10,054,  inclusive;  the  same  being  an  accurate 
reprint  of  the  laws  comprised  in  sections  2347  to  2352  of  the  Revised 
Statutes  of  the  United  States  (U.  S.  Comp.  St.  1901,  pp.  1440,  1441), 
and  in  31  U.  S.  Stat,  at  L.  p.  658  (U.  S.  Comp.  St.  1901,  p.  1441),  and 
in  33  U.  S.  Stat,  at  L.  p.  525  (U.  S.  Comp.  St.  Supp.  1909,  p.  556). 
Sections  10044  to  10049,  inclusive,  being  identical  with  sections  2347  to 
2352,  inclusive,  of  the  Revised  Statutes,  comprise  the  general  coal  land 
law  of  the  United  States  enacted  by  Congress  in  the  year  1873.  Refer- 
ring to  the  sections  by  the  Code  numbers,  the  statutes  contain  the  follow- 
ing provisions : 

Section  10,044  prescribes  a  rule  for  the  acquisition  from  the  govern- 
ment of  coal  lands  being  part  of  the  public  domain  of  the  United  States, 
by  cash  entry.  By  said  rule  the  right  to  make  entries  is  limited  to  persons 
and  associations  whose  qualifications  are  defined  in  the  following  words : 

"Every  person  above  the  age  of  twenty-one  years,  who  is  a  citizen  of 
the  United  States,  or  who  has  declared  his  intention  to  become  such,  or 
any  association  of  persons  severally  qualified  as  above." 

And  the  maximum  quantity  of  coal  land  which  may  be  entered  by  a 
single  individual  or  an  association  is  fixed,  and  the  minimum  price  to 
be  paid  therefor  is  also  fixed. 

Section  10,045  provides  for  a  preference  right  of  entry  in  favor  of 
any  person  or  association  of  persons  severally  qualified  as  provided  in 
the  preceding  section  who  have  opened  and  improved  or  shall  open  and 
improve  any  coal  mine  or  mines  on  the  public  lands  and  shall  be  in 
actual  possession  of  the  same,  and  further  provides  that,  when  any  asso- 
ciation not  less  than  four  persons  severally  qualified  as  above  shall  have 
expended  not  less  than  $5,000  in  working  and  improving  any  such  mine 
or  mines,  such  association  may  enter  not  exceeding  640  acres,  including 
such  mining  improvements. 

Section  10,046  relates  to  the  presentation  of  claims  for  preferential 
rights  and  details  of  procedure  to  secure  the  same. 

Section  10,047  reads  as  follows : 

"The  three  preceding  sections   shall  be   held   to   authorize   only   one 


1911] 


United  States  v.  Mtjnday  et  al.  729 


entry  by  the  same  person  or  association  of  persons ;  and  no  association  of 
persons  any  member  of  which  shall  have  taken  the  benefit  of  such  sec- 
tions either  as  an  individual  or  as  a  member  of  any  other  association 
shall  enter  or  hold  any  other  lands  under  the  provisions  thereof;  and 
no  member  of  anv  association  which  shall  have  taken  the  benefit  of  such 
section*  shall  enter  or  hold  any  other  lands  under  their  provisions ;  and 
all  persons  claiming  under  section  twenty-three  hundred  and  forty-eight 
shall  be  required  to  prove  their  respective  rights  and  pay  for  the  lands 
filed  upon  within  one  vear  from  the  time  prescribed  for  filing  their 
respective  claims ;  and  upon  failure  to  file  the  proper  notice,  or  to  pay 
for  the  land  within  the  required  period,  the  same  shall  be  subject  to 
entry  by  any  other  qualified  applicant." 

Section  10,048  relates  to  conflicting  claims  upon  coal  lands  on  which 
improvements  shall  have  been  commenced. 

Section  10,049  is  a  saving  clause  of  rights  which  may  have  attached 
prior  to  the  enactment  of  the  law. 

Section  10,050  is  the  Act  of  Congress  approved  June  6,  1900  (31 
Stat.  658),  extending  to  the  district  of  Alaska  so  much  of  the  public 
land  laws  'of  the  United  States  as  relate  to  coal  lands,  namely,  sections 
2347  to  2352.  inclusive,  of  the  Revised  Statutes. 

Sections  10,051-10,054,  inclusive,  comprise  the  Act  of  Congress 
approved  April  28,  1904  (33  Stat.  525),  entitled,  "An  art  to  amend  an 
act  entitled  'An  act  to  extend  the  coal  land  laws  to  the  district  of  Alaska, 
approved  June  sixth,  nineteen  hundred,"  which  reads  as  follows: 

"iooqi  That  any  person  or  association  of  persons  qualified  to  make 
entry 'under  the  coal  land  laws  of  the  United  States,  who  shall  have 
opened  or  improved  a  coal  mine  or  coal  mines  on  any  of  the  unsur- 
veved  public  lands  of  the  United  States  in  the  district  of  Alaska,  may 
locate  the  lands  upon  which  such  mine  or  mines  are  situated,  in  rectang- 
ular tracts  containing  forty,  eighty,  or  one  hundred  and  sixty  acres  with 
north  and  south  boundary  lines  run  according  to  the  true  meridian 
by  marking  the  four  corners  thereof  with  permanent  monuments,  so  that 
the  boundaries  thereof  may  be  readily  and  easily  traced.  And  all  such 
locators  shall,  within  one  year  from  the  passage  of  this  Act,  or  within 
one  vear  from  making  such  location,  file  for  record  in  the  recording 
district  and  with  the  register  and  receiver  of  the  land  district  in  which 
the  lands  are  located,  or  situated,  a  notice  containing  the  name  or 
names  of  the  locator  or  locators,  the  date  of  the  location,  the  descrip- 
tion of  the  lands  located,  and  a  reference  to  such  natural  objects  or 
permanent  monuments  as  will  readily  identify  the  same. 

"10052  Sec  2.  That  such  locator  or  locators,  or  their  assigns,  who 
are  citizens  of  the  United  States,  shall  receive  a  patent  to  the  lands 
located  by  presenting,  at  any  time  within  three  years  f rorn  the  date  ot 
such  notice,  to  the  register 'and  receiver  of  the  land  district  in  which 
the  lands  so  located  are  situated  an  application  therefor,  accompanied 
by  a  certified  copy  of  a  plat  of  survey  and  field  notes  thereof,  made  by 
a  United  States  deputy  surveyor  or  a  United  States  mineral  surveyor 


730  Water  and  Mineral  Cases.      [United  States 

duly  approved  by  the  Surveyor  General  for  the  district  of  Alaska,  and 
a  payment  of  the  sum  of  ten  dollars  per  acre  for  the  lands  applied  for; 
but  no  such  application  shall  be  allowed  until  after  the  applicant  has 
caused  a  notice  of  the  presentation  thereof,  embracing  a  description  of 
the  lands,  to  have  been  published  in  a  newspaper  in  the  district  of 
Alaska  published  nearest  the  location  of  the  premises  for  a  period  of 
sixty  days,  and  shall  have  caused  copies  of  such  notice,  together  with  a 
certified  copy  of  the  official  plat  or  survey,  to  have  been  kept  posted  in 
a  conspicuous  place  upon  the  land  applied  for  and  in  the  land  office  for 
the  district  in  which  the  lands  are  located  for  a  like  period,  and  until 
after  he  shall  have  furnished  proof  of  such  publication  and  posting,  and 
such  other  proof  as  is  required  by  the  coal-land  laws :  Provided,  that 
nothing  herein  contained  shall  be  so  construed  as  to  authorize  entries  to 
be  made  or  title  to  be  acquired  to  the  shore  of  any  navigable  waters 
within  said  district. 

"10,053.  Sec.  3.  That  during  such  period  of  posting  and  publication, 
or  within  six  months  thereafter,  any  person  or  association  of  persons 
having  or  asserting  any  adverse  interest  or  claim  to  the  tract  of  land 
or  any  part  thereof  sought  to  be  purchased  shall  file  in  the  land  office 
where  such  application  is  pending,  under  oath,  an  adverse  claim,  setting 
forth  the  nature  and  extent  thereof,  and  such  adverse  claimant  shall, 
within  sixty  days  after  the  filing  of  such  adverse  claim,  begin  an  action 
to  quiet  title  in  a  court  of  competent  jurisdiction  within  the  district 
of  Alaska,  and  thereafter  no  patent  shall  issue  for  such  claim  until  the 
final  adjudication  of  the  rights  of  the  parties,  and  such  patent  shall  then 
be  issued  in  conformity  with  the  final  decree  of  such  court  therein. 

"10,054.  Sec.  4.  That  all  the  provisions  of  the  coal  land  laws  of  the 
United  States  not  in  conflict  with  the  provisions  of  this  act  shall  continue 
and  be  in  full  force  in  the  district  of  Alaska." 

The  statute  comprised  in  these  four  quoted  section  is  specially  appli- 
cable to  Alaska,  and  was  enacted  by  congress  to  meet  an  urgent  demand, 
amounting  to  necessity  and  because  the  previous  statute  of  June  6,  1900, 
extending  the  general  coal  land  law  of  the  United  States  to  Alaska, 
was  impracticable  because  conditions  made  it  impossible  to  acquire  any 
rights  under  it  by  compliance  with  its  requirements. 

In  a  letter  addressed  to  the  registers  and  receivers  in  the  district  of 
Alaska,  dated  June  27,  1900,  the  Commissioner  of  the  General  Land 
Office  announced  the  enactment  of  this  law,  and  explained  that  under 
sections  2347  to  2352,  inclusive,  of  the  Revised  Statutes,  which  the  act 
purported  to  extend  to  Alaska,  coal  land  filings  and  entries  must  be 
by  legal  subdivisions  as  made  by  the  regular  United  States  survey,  and 
that  under  section  2401  of  the  Revised  Statutes  as  amended  by  the  Act 
of  August  20,  1894  (U.  S.  Comp.  St.  1901,  p.  1477),  no  application  for 
a  special  survey  shall  be  granted  unless  the  township  proposed  to  be 
surveyed  is  within  the  range  of  the  regular  progress  of  the  public  sur- 
veys embraced  by  existing  standard  lines  or  bases  for  township  and 
subdivisional  surveys,  and  that,  as  no  township  or   subdivisional   sur- 


1911]  United  States  v.  Munday  et  al.  731 

veys  have  been  made  nor  any  standard  lines  or  bases  for  township  and 
subdivisional  surveys  established  within  Alaska,  therefore  until  the  filing 
in  the  local  land  office  of  the  official  plat  of  survey  of  a  township,  no 
coal  filing  nor  entry  can  be  made.  This  was,  in  fact,  an  official  declara- 
tion of  the  attempt  and  failure  of  congress  to  make  provision,  by  a 
practicable  law,  for  the  acquisition  by  individuals  and  associations  of 
rights  in  and  to  coal  lands  in  Alaska. 

Instead  of  attempting  to  state  the  provisions  of  the  law  of  1904  in 
different  phraseology,  I  have  quoted  it  because  it  is  the  opinion  of  the 
court  that  it  is  not  in  any  particular  ambiguous.  It  means  what  the 
words  selected  by  congress  express  according  to  the  common  and  gen- 
eral understanding  of  people  accustomed  to  use  the  English  language. 
It  need  not  be  construed,  and  there  is  no  authority  to  interpolate 
into  its  provisions  restrictions  and  limitations  of  rights  which  it  grants 
by  judicial  interpretation  or  construction.  In  the  case  of  Newhall  v. 
Sanger,  92  U.  S.  765,  23  L.  Ed.  769,  Mr.  Justice  Davis  said:  "There 
is  no  authority  to  import  a  word  into  a  statute  in  order  to  change  its 
meaning." 

By  the  arguments  made  it  appears  that  this  prosecution  is  founded 
in  part  at  least  upon  a  theory  that  the  restrictions  of  section  10,047, 
above  quoted,  are  to  be  deemed  as  being  imported  into  the  law  of  1904. 
That  contention  is  untenable,  for  the  reason  that  by  the  express  words 
of  that  section  which  I  have  quoted  those  restrictions  apply  only  to 
persons  and  associations  claiming  or  exercising  rights  under  the  three 
preceding  sections,  which  were  and  are  inapplicable  to  conditions  in 
Alaska  and  never  did  have  potential  force  there.  The  statute  of  1904, 
applicable  only  to  Alaska,  is  a  declaration  of  the  will  of  congress  sub- 
sequent to  the  Act  of  June  6,  1900,  extending  the  law  of  1873  to  Alaska, 
and  therefore  is  the  paramount  law.  The  later  law  does  not  in  words 
nor  by  reference  to,  and  adoption  of,  the  provisions  of  the  older  law, 
restrict  persons  or  associations  to  a  single  exercise  of  the  right  granted 
to  locate  coal  claims  and  secure  patents  therefor.  The  argument  that 
section  10,047  mil?t  be  read  into  the  Alaska  statute  is  that  the  right  to 
locate  is  given  only  to  persons  and  associations  qualified  to  make  entry 
under  the  coal  land  laws  of  the  United  States,  and  that  these  words 
exclude  persons  and  associations  having  the  qualifications  prescribed,  but 
disqualified  by  reason  of  having  once  exercised  the  right.  By  this  argument 
there  is  interpolated  into  the  statute  words  additional  to  and  expressing  a 
meaning  different  from  the  plain  declaration  of  the  law  itself.  The  pre- 
scribed qualifications  are  age  and  citizenship.  By  the  law  of  1873  a  person 
twenty-one  years  of  age,  a  citizen  of  the  United  States  is  qualified  to  make 
an  entry  of  coal  land,  and  having  the  same  qualifications,  and  having  also 


732  Watee  and  Mineral  Cases.      [United  States 

opened  or  improved  a  coal  mine  or  unsurveyed  public  land  in  Alaska, 
he  is  entitled  to  become  a  locator  of  a  coal  claim,  including  the  mine 
which  he  has  opened  or  improved.  This  is  so  according  to  the  letter  of 
the  law.  And,  having  located  a  coal  claim,  he  may  sell  it,  and  his  vendee, 
if  a  citizen  of  the  United  States  or  an  association  composed  of  citizens, 
are  entitled  to  receive  a  patent  conveying  the  complete  title  from  the 
government  by  compliance  with  the  requirements  of  section  10,052.  To 
say  that  a  vendee  of  a  qualified  locator  to  be  entitled  to  receive  a  patent 
must  be  a  citizen  or  association  of  citizens  qualified  as  prescribed  to 
make  an  entry  of  coal  land,  and  not  disqualified  by  having  exercised  a 
right  to  acquire  coal  land  from  the  government,  infringes  legislative 
power,  for  in  the  guise  of  construction  a  radical  change  in  the  law  would 
be  effected  by  the  addition  of  requirements  and  restrictions  which  the 
lawmaking  power  did  not  put  there.    The  words  of  the  law  are : 

"That  such  locator  or  locators,  or  their  assigns,  who  are  citizens  of  the 
United  States,  shall  receive  a  patent  to  the  lands  located  by  presenting 

By  having  made  citizenship  a  requisite  condition  of  the  right  to  receive 
a  patent,  the  law  makes  citizenship  the  only  requisite  condition  to  the 
right.  This  is  so  by  the  rule  declared  by  the  Supreme  Court  in  the 
words  of  Mr.  Justice  Davis  above  quoted,  which  is  a  fundamental  rule 
for  the  construction  and  interpretation  of  statutes.  Expressum  facit 
cessare  taciturn. 

Congress  intended  to  enact  a  practicable,  workable  law,  and,  if  its 
second  attempt  to  do  so  be  not  made  futile  by  misconstruction,  we  have 
such  a  law.  It  is  not  a  law  made  to  serve  the  purpose  of  monopolists 
who  would  keep  the  coal  of  Alaska  locked  within  her  mountain  walls, 
nor  is  it  based  upon  any  fantastic  notion  that  trusts  can  be  annihilated  by 
giving  coal  rights  to  no  one  except  the  man  who  by  personal  toil  may  dig 
the  coal  and  carry  it  to  market  upon  his  back  or  upon  his  head.  It  is  the 
duty  of  the  court  to  not  misconstrue  the  law,  nor  stigmatize  the  congress 
which  enacted  it  and  the  president  who  approved  and  signed  it,  by 
imputing  to  them  a  lack  of  either  sense  or  honesty.  This  law  by  its 
words  and  intendment  limits  the  rights  of  a  qualified  locator  who  has 
opened  or  improved  a  coal  mine  in  Alaska  by  prescribing  the  maximum 
area  and  the  form  of  the  tract  which  he  may  secure  by  doing  the  things 
which  the  law  exacts,  and  by  making  the  opening  or  improving  of  a 
coal  mine  the  initiatory  step,  and  the  marking  of  boundaries  and  corners 
and  the  posting  and  recording  of  notices  essential  to  a  valid  location. 
These  requirements  necessitate  expense  and  trouble,  and  it  is  not  for 
the  court  to  say  that  as  restrictions  and  limitations  they  are  not  sufficient. 
The  responsibility  of  determining  all  such  questions  belongs  to  the 
legislative  branch  of  the  government.     To  become  entitled  to  a  patent, 


1911]  United  States  v.  Munday  et  al.  733 

the  locator  or  his  assigns  must  publish  and  keep  posted  the  notice  pre- 
scribed by  the  second  section  of  the  act  and  furnish  proof  of  such  publi- 
cation and  posting,  "and  such  other  proof  as  is  required  by  the  coal 
land  laws."  We  now  look  to  the  coal  land  laws  to  find  what  other 
proof  must  be  furnished.  We  search  the  law  to  find  what  other  proofs 
are  required  rather  than  regulations  promulgated  by  departmental  offi- 
cers, because  the  words  of  the  act  refer  to  the  law,  and  do  not  leave 
the  locator,  who  has  opened  and  improved  a  coal  mine,  under  the  neces- 
sity of  complying  with  the  personal  will  of  bureau  officers  authorized 
to  change  the  regulation  as  often  as  they  may  think  that  they  discover 
reasons  for  more  exacting  conditions.  Section  10,047  of  tne  Code  con- 
tains this  clause: 

"All  persons  claiming  under  section  twenty-three  hundred  and  forty- 
eight  shall  be  required  to  prove  their  respective  rights  and  pay  for 
lands  filed  upon.     *     *     *" 

This  is  undoubtedly  the  other  proof  referred  to,  and  by  the  selection 
and  adoption  of  that  particular  clause  there  is  plainly  manifested  a  defi- 
nite purpose  to  not  graft  the  other  provisions  of  the  same  section  upon 
the  Alaska  coal  land  laws.     Locators  of  coal  claims  in  Alaska  under 
this  law  have  the  right  to  use  business  sense,  to  look  ahead  and  make 
arrangements  for  working  capital  and  to  contract  in  advance  for  trans- 
portation facilities,  and  to  sell  or  mortgage  their  claims.     By  manda- 
tory words  the  law  prescribes  that  the  locator  who  meets  the  require- 
ments prescribed  shall  receive  a  patent.     He  may  sell  his  claim  before 
obtaining  the  patent,  and,  if  he  does  so,  his  vendee,  if  a  citizen  of  the 
United   States   or  an   association  of  citizens,   shall   receive  the   patent. 
It  is  not  to  be  inferred  that  the  law  will  permit  the  acquisition  of  coal 
lands  in  Alaska  through  the  medium  of  dummy  entry  men.    In  land  office 
practice   dummies   are   either  fictitious   persons,   or  those  who,   having 
no  interest  in  the  transaction,  permit  the  use  of  their  names  for  the 
perpetration  of  a  fraud  and  sign  papers  and  make  affidavits  perfunc- 
torily.   A  man  who  opens  or  improves  a  coal  mine  in  Alaska  and  locates 
a  claim  in  the  form  prescribed  by  the  statute,  including  his  improve- 
ments, and  marks  its  lines  and  corners  so  that  its  boundaries  can  be 
readily  traced  on  the  ground,  and  posts  and  records  a  notice  in  conform- 
ity to  the  requirements  of  the  statute,  and  is  then  competent  and  entitled 
to  deal  with  the  claim  as  his  own  property,  to  sell  it,  lease  it,  mortgage 
it,  or  keep  it,  and  derive  for  himself  all  the  profits  and  benefits  to  be 
derived  from  the  most  advantageous  use  or  disposition  of  such  property, 
is  not  a  dummy  entry  man. 

This  understanding  of  the  law  does  not  make  it  inconsistent  with  its 
title.  It  is  an  amendatory  statute.  It  amends  not  by  changing  any 
provisions  of  previously  enacted  laws,  but  by  making  additions  thereto 


734  Water  and  Mineral  Cases.      [United  States 

especially  applicable  to  local  conditions  in  Alaska.  This  appears  the 
more  obvious  when  all  of  the  laws  affecting  the  acquisition  of  rights  to 
coal  lands  are  grouped  in  chronological  order  as  they  appear  in  Pierce's 
Federal  Code. 

Nothing  is  to  be  implied  from  the  peculiar  phraseology  of  the  fourth 
and  last  section.  By  its  words  all  the  provisions  of  the  coal  land  laws  of 
the  United  States  not  in  conflict  with  the  provisions  of  this  act  shall 
continue  and  be  in  full  force  in  the  district  of  Alaska.  This  continues 
the  existing  status  as  to  all  the  provisions  of  the  coal  land  laws  of  the 
United  States  not  in  conflict  with  the  new  enactment.  If  there  be  con- 
flicting provisions,  the  older  enactments  yield  to  the  new.  Provisions 
which  do  not  conflict  continue  in  force,  and,  when  conditions  shall  be 
changed  so  that  their  requirements  may  be  complied  with,  it  will  be 
legal  and  practicable  to  make  cash  entries  and  acquire  preferential 
rights.  A  foreign  corporation  cannot  lawfully  acquire  or  hold  a  coal 
claim  in  Alaska  either  in  its  corporate  name  or  in  the  name  of  any  agent 
or  trustee.  Therefore,  for  the  reason  that  the  indictment  charges  a 
conspiracy  to  acquire  coal  claims  or  proprietary  rights  to  coal  claims  in 
Alaska  for  a  foreign  corporation,  it  must  be  sustained  as  a  valid  indict- 
ment, and  the  objection  to  the  introduction  of  evidence  must  be  over- 
ruled. The  court  will,  however,  instruct  the  jury  that,  to  justify  a  con- 
viction of  the  defendants  under  it,  the  evidence  must  prove  that  the 
object  of  the  conspiracy,  if  any,  must  have  been  to  perpetrate  a  fraud 
by  securing  coal  claims  or  proprietary  rights  in  coal  claims  in  Alaska 
for  the  Pacific  Coal  &  Oil  Company. 

Addenda. 

After  the  announcement  by  the  court  of  its  decision  and  ruling  on  the 
objection  to  the  introduction  of  evidence,  as  indicated  in  the  foregoing 
opinion,  in  order  to  facilitate  a  review  of  the  decision  by  the  supreme 
court,  the  trial  was  terminated,  pursuant  to  a  stipulation,  by  and  between 
counsel  for  the  government  and  counsel  for  the  several  defendants,  by 
the  following  proceedings : 

(i)  The  government  does  now  and  here  abandon  for  all  time  the 
charges  in  the  indictment  of  the  foreign  or  alien  character  of  the  Pacific 
Coal  &  Oil  Company  as  an  element  of  the  crime  sought  to  be  charged 
by  the  indictment. 

(2)  Defendants  now  move  the  court  that  the  indictment  be  quashed 
and  that  the  defendants  be  discharged,  upon  the  following  grounds:  (1) 
That  the  indictment  in  this  case  does  not  charge  the  defendants,  or  any 
of  them,  with  any  crime  or  offense  against  the  United  States,  nor  with 
the  violation  of  any  law  of  the  United  States.     (2)    That  the  said  indict- 


1911]  United  States  v.  Munday  et  al.  735 

ment  does  not  charge  the  defendants,  or  any  of  them,  with  the  crime  or 
offense  of  conspiracy  to  defraud  the  United  States.  (3)  That  said 
indictment  fails  to  allege  the  doing  or  committing  of  any  overt  act  or 
acts  by  any  of  the  defendants  to  effect  the  object  of  any  conspiracy  to 
defraud  the  United  States. 

This  motion  is  based  upon  the  general  grounds  that  the  laws  of  the 
United  States  regulating  the  disposition  of  coal  lands  in  the  district  of 
Alaska  during  the  times  set  forth  in  the  indictment  did  not  prohibit 
the  transactions,  or  any  of  them,  charged  in  the  indictment,  as  contem- 
plated by  and  a  part  of  the  alleged  conspiracy  therein  set  forth.  In  order 
to  obviate  any  question  of  double  jeopardy,  and  for  the  purpose  of  mak- 
ing the  record  in  such  form  that  a  writ  of  error  will  lie  to  the  supreme 
court  in  favor  of  the  government,  under  Act  March  2,  1907,  c.  2564,  34 
Stat.  1246  (U.  S.  Comp.  St.  Supp.  1909,  p.  220),  the  government  now 
moved  that  the  court  withdraw  one  of  the  jurors  before  ruling  upon 
the  motion  just  interposed  on  behalf  of  the  defendants.  The  defendants 
and  each  of  them,  being  personally  present,  consent  to  the  withdrawal 
of  the  juror  by  the  court,  as  requested  by  counsel  for  the  government, 
and  Mr.  Funk,  one  of  the  jurors,  is  thereupon  excused  and  withdrawn 
from  the  jury  by  the  court. 

PER  CURIAM.  The  motion  made  on  behalf  of  the  defendant  is 
granted  by  the  court,  the  indictment  is  quashed,  and  the  defendants  are 
discharged.  This  ruling  is  based  upon  a  construction  of  the  coal  land 
laws  of  the  United  States  applicable  to  the  district  of  Alaska,  and  the 
grounds  of  the  court's  ruling  are  as  set  forth  in  the  written  opinion  or 
opinions  filed  or  to  be  filed  herein. 

Counsel  for  the  government  asks  that  an  exception  be  noted  to  the 
ruling  of  the  court,  and  the  exception  is  allowed  by  the  court. 


736  Water  and  Mineral  Cases.      [United  States 


UNITED  STATES  v.  DOUGHTEN. 

[Circuit  Court  E.  D.    Washington,  E.  D.,  April  15,  1911.] 
186  Fed.  226. 

1.  Coal    Lands — Conspiracy — Indictment. 

An  indictment  charging  a  conspiracy  to  defraud  the  United  States  by  obtaining 
title  to  5000  acres  of  coal  land  by  means  of  thirty-nine  false,  fraudulent  and  fictitious 
entries  made  by  as  many  different  persons  ostensibly  for  their  own  use,  but  in  truth, 
etc.,  held  to  charge  a  crime  under  section  2350  of  the  Revised  Statutes. 

2.  Same — Alaska — Statutes. 

The  prohibitions  and  limitations  of  section  2350,  United  States  Revised  Statutes, 
held  to  apply  to  coal  entries  made  in  the  district  of  Alaska  under  the  Act  of  April 
28,  1904,  the  object  and  purpose  of  the  latter  act  being  to  provide  for  a  difference 
only  in  the  mode  of  location,  the  time  and  manner  of  making  final  proof  and  the 
trial  of  adverse  claims. 

3.  Construction  of  Statutes. 

The  subsequent  legislative  acts  of  congress  may  be  considered  in  arriving  at  the 
intent  of  a  particular  statute. 

Charles  H.  Doughten  and  others  were  indicted  for  conspiracy  to 
defraud  the  United  States  in  connection  with  coal  land  claims  in  Alaska. 
Demurrer  to  the  indictment.     Overruled. 

B.  D.  Townsend,  Special  Assistant  Attorney  General,  Oscar  Cain, 
U.  S.  Attorney,  and  E.  C.  MacDonald  Assistant  U.  S.  Attorney. 

For  defendants  Doughten  and  Brown — James  E.  Fenton. 

For  defendant  White — James  E.  Fenton  and  Frank  H.  Graves. 

For  defendants  Charles  A.  McKenzie  and  Donald  A.  McKenzie— J. 
W.  Roberts  (E.  C.  Hughes  of  counsel). 

RUDKIN,  District  Judge.  The  Act  of  March  3,  1873,  relating  to 
the  entry  and  sale  of  coal  lands,  is  embodied  in  sections  2347  to  2352, 
inclusive,  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  pp.  1440-1441), 
which  read  as  follows: 

"Sec.  2347.  Every  person  above  the  age  of  twenty-one  years,  who 
is  a  citizen  of  the  United  States,  or  who  has  declared  his  intention  to 
become  such,  or  any  association  of  persons  severally  qualified  as  above, 
shall  upon  application  to  the  register  of  the  proper  land  office,  have  the 
right  to  enter,  by  legal  subdivisions,  any  quantity  of  vacant  coal  lands 
of  the  United  States  not  otherwise  appropriated  or  reserved  by  compe- 


1911]  United  States  v.  Doughten.  737 

tent  authority,  not  exceeding  one  hundred  and  sixty  acres  to  such  indi- 
vidual person,  or  three  hundred  and  twenty  acres  to  such  association, 
upon  payment  to  the  receiver  of  not  less  than  ten  dollars  per  acre  for 
such  lands  where  the  same  shall  be  situated  more  than  fifteen  miles  from 
any  completed  railroad,  and  not  less  than  twenty  dollars  per  acre  for 
such  lands  as  shall  be  within  fifteen  miles  of  such  road. 

"Sec.  2348.  Any  person  or  association  of  persons  severally  qualified, 
as  above  provided,  who  have  opened  and  improved,  or  shall  hereafter 
open  and  improve,  any  coal  mine  or  mines  upon  the  public  lands,  and 
shall  be  in  actual  possession  of  the  same,  shall  be  entitled  to  a  preference 
right  of  entry,  under  the  preceding  section,  of  the  mines  so  opened  and 
improved:  Provided,  that  when  any  association  of  not  less  than  four 
persons,  severally  qualified  as  above  provided,  shall  have  expended  not 
less  than  five  thousand  dollars  in  working  and  improving  any  such  mine 
or  mines,  such  association  may  enter  not  exceeding  six  hundred  and 
forty  acres,  including  such  mining  improvements. 

"Sec.  2349.  All  claims  under  the  preceding  section  must  be  presented 
to  the  register  of  the  proper  land  district  within  sixty  days  after  the 
date  of  actual  possession  and  the  commencement  of  improvements  on 
the  land,  by  the  filing  of  a  declaratory  statement  therefor;  but  when  the 
township  plat  is  not  on  file  at  the  date  of  such  improvement,  filing  must 
be  made  within  sixty  days  from  the  receipt  of  such  plat  at  the  district 
office;  and  where  the  improvements  shall  have  been  made  prior  to  the 
expiration  of  three  months  from  the  third  day  of  March,  eighteen  hun- 
dred and  seventy-three,  sixty  days  from  the  expiration  of  such  three 
months  shall  be  allowed  for  the  filing  of  a  declaratory  statement,  and 
no  sale  under  the  provisions  of  this  section  shall  be  allowed  until  the 
expiration  of  six  months  from  the  third  day  of  March,  eighteen  hundred 
and  seventy-three. 

"Sec.  2350.  The  three  preceding  sections  shall  be  held  to  authorize 
one  entry  by  the  same  person  or  association  of  persons ;  and  no  associa- 
tion of  persons  any  member  of  which  shall  have  taken  the  benefit  of 
such  sections,  either  as  an  individual  or  as  a  member  of  any  other  asso- 
ciation, shall  enter  or  hold  any  other  lands  under  the  provisions  thereof  ; 
and  no  member  of  any  association  which  shall  have  taken  the  benefit  of 
such  sections  shall  enter  or  hold  any  other  lands  under  their  provisions ; 
and  all  persons  claiming  under  section  twenty-three  hundred  and  forty- 
eight  shall  be  required  to  prove  their  respective  rights  and  pay  for  the 
lands  filed  upon  within  one  one  year  from  the  time  prescribed  for  filing 
their  respective  claims ;  and  upon  failure  to  file  the  proper  notice,  or  to 
pay  for  the  land  within  the  required  period,  the  same  shall  be  subject  to 
entry  by  any  other  qualified  applicant. 

"Sec.  2351.  In  case  of  conflicting  claims  upon  coal  lands  where  the 
improvements  shall  be  commenced  after  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  priority  of  possession  and  improvement,  fol- 
lowed by  proper  filing  and  continued  good  faith,  shall  determine  the 
preference-right  to  purchase.  And  also  where  improvements  have 
already  been  made  prior  to  the  third  day  of  March,  eighteen  hundred 
and  seventy-three,  division  of  the  land  claimed  may  be  made  by  legal 
subdivisions,  to  include,  as  near  as  may  be,  the  valuable  improvements 
of  the  respective  parties.  The  Commissioner  of  the  General  Land  Office 
W.  &  M.— £7 


738  Water  and  Mineral  Cases.      [United  States 

is  authorized  to  issue  all  needful  rules  and  regulations  for  carrying  into 
effect  the  provisions  of  this  and  the  four  preceding  sections. 

"Sec.  2352.  Nothing  in  the  five  preceding  sections  shall  be  construed 
to  destroy  or  impair  any  rights  which  may  have  attached  prior  to  the 
third  day  of  March,  eighteen  hundred  and  seventy-three,  or  to  authorize 
the  sale  of  lands  valuable  for  mines  of  gold,  silver,  or  copper." 

The  Act  of  June  6,  1900  (31  Stat.  658  [U.  S.  Comp.  St.  1901,  p. 
1441]),  extended  the  provisions  of  the  foregoing  sections  to  the  District 
of  Alaska. 

The  Act  of  April  28,  1904  (33  Stat.  525  [U.  S.  Comp.  St.  Supp.  1909, 
p.  556]),  which  by  its  title  purports  to  amend  the  Act  of  June  6,  1900, 
provides  as  follows: 

"That  any  person  or  association  of  persons  qualified  to  make  entry 
under  the  coal  land  laws  of  the  United  States,  who  shall  have  opened 
or  improved  a  coal  mine  or  coal  mines  on  any  of  the  unsurveyed  public 
lands  of  the  United  States  in  the  district  of  Alaska,  may  locate  the  lands 
upon  which  such  mine  or  mines  are  situated,  in  rectangular  tracts  con- 
taining forty,  eighty  or  one  hundred  and  sixty  acres,  with  north  and 
south  boundary  lines  run  according  to  the  true  meridian,  by  marking 
the  four  corners  thereof  with  permanent  monuments,  so  that  the  boun- 
daries thereof  may  be  readily  and  easily  traced.  And  all  such  locators 
shall,  within  one  year  from  the  passage  of  this  act,  or  within  one  year 
from  making  such  locations,  file  for  record  in  the  recording  district, 
and  with  the  register  and  receiver  of  the  land  district  in  which  the  lands 
are  located  or  situated,  a  notice  containing  the  name  or  names  of  the 
locator  or  locators,  the  date  of  the  location,  the  description  of  the  lands 
located,  and  a  reference  to  such  natural  objects  or  permanent  monu- 
ments as  will  readily  identify  the  same. 

"Sec.  2.  That  such  locator  or  locators,  or  their  assigns,  who  are 
citizens  of  the  United  States,  shall  receive  a  patent  to  the  lands  located 
by  presenting,  at  any  time  within  three  years  from  the  date  of  such 
notice,  to  the  register  and  receiver  of  the  land  district  in  which  the  lands 
so  located  are  situated  an  application  therefor,  accompanied  by  a  certi- 
fied copy  of  a  plat  of  survey  and  field  notes  thereof,  made  by  a  United 
States  deputy  surveyor  or  a  United  States  mineral  surveyor  duly 
approved  by  the  surveyor  general  for  the  district  of  Alaska,  and  a  pay- 
ment of  the  sum  of  ten  dollars  per  acre  for  the  lands  applied  for ;  but  no 
such  application  shall  be  allowed  until  after  the  applicant  has  caused  a 
notice  of  the  presentation  thereof,  embracing  a  description  of  the  lands, 
to  have  been  published  in  a  newspaper  in  the  district  of  Alaska  pub- 
lished nearest  the  location  of  the  premises  for  a  period  of  sixty  days, 
and  shall  have  caused  copies  of  such  notice,  together  with  a  certified 
copy  of  the  official  plat  of  survey,  to  have  been  kept  posted  in  a  con- 
spicuous place  upon  the  land  applied  for  and  in  the  land  office  for  the 
district  in  which  the  lands  are  located  for  a  like  period,  and  until  after 
he  shall  have  furnished  proof  of  such  publication  and  posting,  and  such 
other  proof  as  is  required  by  the  coal  land  laws :  Provided,  that  noth- 
ing herein  contained  shall  be  so  construed  as  to  authorize  entries  to  be 
made  or  title  to  be  acquired  to  the  shore  of  any  navigable  waters  within 
said  district. 


1911]  United  States  v.  Doughten.  739 

"Sec.  3.  That  during  such  period  of  posting  and  publication,  or  within 
six  months  thereafter,  any  person  or  association  of  persons  having  or  as- 
serting any  adverse  interest  or  claim  to  the  tract  of  land  or  any  part 
thereof  sought  to  be  purchased  shall  file  in  the  land  office  where  such 
application  is  pending  under  oath,  an  adverse  claim,  setting  forth  the 
nature  and  extent  thereof,  and  such  adverse  claimant  shall  within  sixty 
days  after  the  filing  of  such  adverse  claim,  begin  an  action  to  quiet  title 
in  a  court  of  competent  jurisdiction  within  the  district  of  Alaska,  and 
thereafter  no  patent  shall  issue  for  such  claim  until  the  final  adjudica- 
tion of  the  rights  of  the  parties,  and  such  patent  shall  then  be  issued 
in  conformity  with  the  final  decree  of  such  court  therein. 

"Sec.  4.  That  all  the  provisions  of  the  coal  land  laws  of  the  United 
States  not  in  conflict  with  the  provisions  of  this  act  shall  continue  and 
be  in  full  force  in  the  district  of  Alaska." 

The  Act  of  May  28,  1908  (35  Stat.  424  [U.  S.  Comp.  St.  Supp.  1909, 
p.  557]),  contains  these  further  provisions: 

"That  all  persons,  their  heirs  or  assigns,  who  have  in  good  faith  per- 
sonally or  by  an  attorney  in  fact  made  locations  of  coal  land  in  the 
territory  of  Alaska  in  their  own  interest,  prior  to  November  twelfth, 
nineteen  hundred  and  six,  or  in  accordance  with  circular  of  instructions 
issued  by  the  Secretary  of  the  Interior  May  sixteenth,  nineteen  hundred 
and  seven,  may  consolidate  their  said  claims  or  locations  by  including 
in  a  single  claim,  location,  or  purchase  not  to  exceed  two  thousand  five 
hundred  and  sixty  acres  of  contiguous  lands,  not  exceeding  in  length 
twice  the  width  of  the  tract  thus  consolidated,  and  for  this  purpose 
such  persons,  their  heirs,  or  assigns,  may  form  associations  or  corpora- 
tions who  may  perfect  entry  of  and  acquire  title  to  such  lands  in  accord- 
ance with  the  other  provisions  of  law  under  which  said  locations  were 
originally  made:  Provided,  that  no  corporation  shall  be  permitted  to 
consolidate  its  claims  under  this  act  unless  seventy-five  per  centum  of 
its  stock  shall  be  held  by  persons  qualified  to  enter  coal  lands  in  Alaska. 

"Sec.  2.  That  the  United  States  shall,  at  all  times,  have  the  preference 
right  to  purchase  so  much  of  the  product  of  any  mine  or  mines  opened 
upon  the  lands  sold  under  the  provisions  of  this  act  as  may  be  necessary 
for  the  use  of  the  army  and  navy,  and  at  such  reasonable  and  remuner- 
ative price  as  may  be  fixed  by  the  President;  but  the  producers  of  any 
coal  so  purchased  who  may  be  dissatisfied  with  the  price  thus  fixed  shall 
have  the  right  to  prosecute  suits  against  the  United  States  in  the  Court 
of  Claims  for  the  recovery  of  any  additional  sum  or  sums  they  may 
claim  as  justly  due  upon  such  purchase. 

"Sec.  3.  That  if  any  of  the  lands  or  deposits  purchased  under  the  pro- 
visions of  this  act  shall  be  owned,  leased,  trusteed,  possessed,  or  con- 
trolled by  any  device  permanently,  temporarily,  directly,  indirectly,  tac- 
itly, or  in  any  manner  whatsoever  so  that  they  form  part  of,  or  in  any 
way  effect  any  combination,  or  are  in  any  wise  controlled  by  any  com- 
bination in  the  form  of  an  unlawful  trust,  or  form  the  subject  of  any 
contract  or  conspiracy  in  restraint  of  trade  in  the  mining  or  selling  of 
coal,  or  of  any  holding  of  such  lands  by  any  individual,  partnership, 
association,  corporation,  mortgage,  stock  ownership,  or  control,  in  excess 
of  two  thousand  five  hundred  and  sixty  acres  in  the  district  of  Alaska, 
the  title  thereto  shall  be  forfeited  to  the  United  States  by  proceedings 


740  Water  and  Mineral  Cases.       [United  States 

instituted  by  the  Attorney  General  of  the  United  States  in  the  courts 
for  that  purpose. 

"Sec.  4.  That  every  patent  issued  under  this  act  shall  expressly  recite 
the  terms  and  conditions  prescribed  in  sections  two  and  three  hereof." 

The  indictment  in  this  case  was  returned  under  section  5440  of  the 
Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  3676),  which  declares: 

"If  two  or  more  persons  conspire  either  to  commit  any  offense  against 
the  United  States,  or  to  defraud  the  United  States  in  any  manner  or 
for  any  purpose,  and  one  or  more  of  such  parties  do  any  act  to  effect  the 
object  of  the  conspiracy,  all  the  parties  to  such  conspiracy  shall  be  liable 
to  a  penalty  of  not  less  than  one  thousand  dollars  and  not  more  than  ten 
thousand  dollars,  and  to  imprisonment  not  more  than  two  years." 

On  his  arraignment  the  defendant  Charles  A.  McKenzie  interposed  a 
demurrer  to  the  indictment,  and  the  questions  raised  by  the  demurrer 
are  now  presented  for  decision.  Inasmuch  as  the  demurrer  goes  to  the 
substance  of  the  charge  and  not  to  mere  matters  of  form,  it  is  deemed 
sufficient  for  our  present  purposes  to  state  in  general  terms  that  the 
indictment  charges  a  conspiracy  on  the  part  of  the  defendants  to  defraud 
the  United  States  by  obtaining  title  to  upwards  of  5,000  acres  of  coal 
land  in  the  district  of  Alaska,  of  the  value  of  upwards  of  $2,000,000, 
by  means  of  thirty-nine  false,  fraudulent,  and  fictitious  entries,  made  by  as 
many  different  persons,  ostensibly  for  their  own  use  and  benefit,  but  in 
truth  and  in  fact  for  the  use  and  benefit  of  the  defendants,  whereby 
the  defendants  will  be  enabled  to  receive  and  enjoy  the  benefit  of  a 
greater  number  of  coal  entries  and  locations  and  a  greater  quantity  of 
coal  land  than  is  permissible  under  the  law.  I  understand  counsel  for 
the  demurring  defendant  to  concede  that  the  indictment  charges  a  crime, 
if  the  prohibitions  and  limitations  contained  in  section  2350  of  the 
Revised  Statutes  apply  to  coal  entries  made  in  the  district  of  Alaska 
under  the  Act  of  April  28,  1904,  but,  if  this  concession  be  not  made,  the 
question  is  no  longer  an  open  one.  United  States  v.  Trinidad  Coal  Co., 
137  U.  S.  160,  11  Sup.  Ct.  57,  34  L.  Ed.  640;  United  States  v.  Keitel, 
211  U.  S.  370,  29  Sup.  Ct.  123,  53  L.  Ed.  230;  United  States  v.  Portland 
Coal  &  Coke  Co.  (C.  C),  173  Fed.  566. 

The  position  of  the  defendants,  as  I  gather  it  from  the  briefs  and 
arguments  of  counsel,  is  this :  They  contend  that  the  Act  of  1904  is  com- 
plete within  itself,  and  bears  a  close  analogy  to  the  mineral  land  act ; 
that  under  its  provisions  there  is  no  limit  to  the  number  of  entries  or 
locations  a  person  may  make,  or  to  the  number  of  assignments  he  may 
take ;  that  the  provision  of  section  4,  continuing  the  nonconflicting  pro- 
vision of  the  coal  land  laws  of  the  United  States  in  full  force  in  the 
district  of  Alaska,  continues  such  laws  in  force  as  to  surveyed  lands 
only ;  in  fine,  that  the  act  is  a  new  departure  in  coal  land  legislation,  and 
was  enacted  by  congress  in  recognition  of  the  well-known  fact  that  the 


1911]  United  States  v.  Doughten.  741 

existing  laws  were  not  adapted  to  local  conditions  in  that  distant  terri- 
tory. This  argument  is  engaging  and  plausible,  but  to  my  mind  it  is 
neither  convincing  nor  controlling.  The  supposed  analogy  to  the  mineral 
land  act  is  found,  first,  in  the  requirement  of  section  I  of  the  act  that 
the  lands  shall  be  located  in  rectangular  tracts,  containing  40,  80,  or 
160  acres,  with  north  and  south  boundary  lines  run  according  to  the  true 
meridian,  by  marking  the  four  corners  with  permanent  monuments,  and 
that  the  location  notice  shall  be  filed  for  record  in  the  recording  district, 
as  well  as  with  the  register  and  receiver  of  the  district  land  office;  sec- 
ond, in  the  provision  of  section  2  of  the  act  recognizing  assignments  and 
prescribing  the  mode  of  making  proof;  and,  third,  in  the  provision  of 
section  3  of  the  act  prescribing  the  mode  and  place  of  trial  of  adverse 
claims.  I  find  nothing  in  these  several  provisions  to  indicate  a  general 
change  of  policy  on  the  part  of  the  government.  These  coal  claims  are 
located  on  unsurveyed  lands.  They  cannot  be  described  by  reference  to 
the  public  surveys,  and  the  only  thing  left  is  to  tie  the  descriptions  to 
permanent  monuments  on  the  ground.  The  local  land  offices  in  Alaska 
are  inaccessible,  and  in  this  fact  I  find  a  sufficient  explanation  and  justi- 
fication for  the  requirement  that  the  location  notices  shall  be  filed  in 
the  recording  district,  and  adverse  claims  tried  out  in  the  civil  courts, 
which  are  accessible  to  the  people.  The  provision  of  section  2  in  rela- 
tion to  assignments  is  but  the  legislative  recognition  of  a  right  which  the 
department  had  rightfully  or  wrongfully  accorded  to  entry  men  under 
the  act  of  1873  for  a  period  of  thirty  years  prior  to  the  passage  of  the  act 
of  1904.  The  argument  that  the  Act  of  1873  is  not  adapted  to  local  con- 
ditions in  Alaska  tends  equally  to  show  that  it  is  not  adapted  to  con- 
ditions in  any  other  section  of  the  country.  It  may  be  that  the  act  tends 
to  promote  fraud  and  perjury,  and  that  40,  80,  or  160  acres  of  coal  land 
is  of  little  or  no  value  to  the  individual,  but  this  argument  should  be 
addressed  to  congress,  and  not  to  the  courts.  It  is  a  matter  of  familiar 
history  that  at  the  time  of  the  passage  of  the  act  of  1873  the  great  coal 
fields  of  the  western  part  of  the  United  States  were  as  far  removed  from 
civilization  and  from  transportation  facilities  as  are  the  coal  fields  of 
Alaska  to-day,  yet  the  policy  of  the  government  to  confer  a  right  upon 
the  individual  and  prevent  monopoly  has  never  been  departed  from  in 
the  nearly  forty  years  that  have  elapsed  since  the  date  of  its  passage. 
Furthermore,  questions  of  general  governmental  policy  such  as  this  must 
be  determined  by  congress,  and  not  by  the  courts.  The  question  here 
presented  is  one  purely  of  statutory  construction ;  and,  however  firmly 
a  court  might  disbelieve  in  the  past  coal  land  policy  of  the  government, 
it  would  usurp  authority  not  conferred  upon  it,  should  it  attempt  to 
establish  a  policy  in  defiance  of  the  will  of  congress.     That  body,  acting 


742  Water  and  Mineral  Cases.      [United  States 

within  its  constitutional  authority,  is  the  final  arbiter  of  the  public  policv 
of  the  nation,  and  while  the  courts,  unaided  by  legislative  declaration, 
and  applying  the  principles  of  the  common  law,  may  uphold  or  condemn 
contracts  in  the  light  of  what  is  conceived  to  be  public  policy,  their 
determination  as  a  rule  for  future  conduct  must  yield  to  the  legislative 
will  when  expressed  in  the  mode  prescribed  by  the  fundamental  law. 
Turning  now  to  the  legislation  in  question,  what   was   the   legislative 
intent  as  evidenced  by  the  act  of  1904?     The  original  act  of  1873  did 
not  by  its  own  terms  extend  to  the  district  of  Alaska.     In  1900  congress 
extended  its  provisions  to  that  district,  and  there  is  not  a  word  or  a 
line  in  the  extending  act  to  indicate  any  change  of  policy  on  the  part  of 
the  government  at  that  time.     It  was  later  discovered  that  the  act  was 
not  adapted  to  conditions  there,  not  because  a  person  could  not  make 
a  sufficient  number  of  coal  entries,  nor  because  he  could  not  take  a  suffi- 
cient number  of  assignments,  but  because  he  could  not  acquire  title  at 
all  until  the  public  surveys  were  extended.     It  is  true  that  under  section 
2  of  the  act  of  1873  a  person  might  acquire  a  preference  right  of  pur- 
chase on  unsurveyed  lands,  but  he  could  not  acquire  title  until  the  public 
surveys  were  extended.     The  mere  preference   right  was  therefore   a 
barren  one,  unless  there  was  a  reasonable  expectation  that  the  public 
surveys  would  be  extended  so  that  the  locator  could  obtain  title  at  some 
time  in  the  near  future.    It  was  to  remedy  this  defect,  and  not  to  enlarge 
the  rights  of  the  entry  man,  that  the  act  of  1904  was  passed.     Its  sole 
purpose  in  my  opinion  was  to  enable  locators  to  acquire  title  to  coal  land 
on  unsurveyed  public  lands.   There  is  nothing  in  the  act  inconsistent  with 
this  view,  nor  is  there  anything  in  the  act,  so  far  as  I  can  discover,  incon- 
sistent or  in  conflict  with  the  provisions  of  section  2350  of  the  Revised 
Statutes,  prohibiting  more  than  a  single  entry  by  a  single  individual. 
The  conflicting  provisions  in  the  act  of  1904  relate  to  the  mode  of  loca- 
tion, the  time  and  manner  of  making  final  proof,  and  the  manner  of 
trial  of  adverse  claims,  and  I  find  no  other  conflict  between  the  two  acts. 
The  fact  that  section  2350  of  the  Revised  Statutes  limits  its  operation 
to  entries  made  under  the  three  preceding  sections  is  to  my  mind  of  no 
moment.     The  original  act  used  the  expression,  "this  act,"  instead  of 
"the  three  preceding  sections,"   and  in  its   last   analysis   the  provision 
meant  only  that  no  more  than  one  coal  land  entry  by  a  single  individual 
was  permissible.     This  conclusion  is  fortified  by  the  act  of  1908.     This 
latter  act,  as  clearly  appears   from   its   title  and  subject-matter,   is  an 
enabling  statute,  and  was  intended  to  extend  and  enlarge  the  rights  of 
locators  in  Alaska.    Yet,  if  we  accept  the  views  of  the  defendants  such 
an  enactment  was  wholly  unnecessary,  for  locators  possessed  far  greater 
rights  under  the  act  of  1904  than  are  accorded  to  them  under  the  later 
enactment.    While  the  act  of  1908  was  passed  long  after  the  commission 


1911]  United  States  v.  Dotjghten.  743 

of  the  acts  charged  in  the  indictment  and  cannot  render  criminal,  act* 
which  were  innocent  at  the  time  of  their  commission,  it  may  neverthe- 
less be  looked  to  for  the  purpose  of  ascertaining  the  legislative  intent. 
The  act  of  1900,  the  act  of  1904,  and  the  act  of  1908  are  all  in  pari 
materia,  and  must  be  construed  together.  "All  consistent  statutes  which 
can  stand  together,  though  enacted  at  different  dates,  relating  to  the  same 
subject,  and  hence  briefly  called  statutes  in  pari  materia,  are  treated  pro- 
spectively, and  construed  together,  as  though  they  constituted  one  act. 
This  is  true,  whether  the  acts  relating  to  the  same  subject  are  passed 
at  different  dates,  separated  by  long  or  short  intervals,  at  the  same  ses- 
sion, or  on  the  same  day.  They  are  all  to  be  compared,  harmonized,  if 
possible,  and,  if  not  susceptible  to  a  construction  which  will  make  all 
of  their  provisions  harmonious,  they  are  made  to  operate  together,  so 
far  as  possible,  consistently  with  the  evident  intent  of  the  legislative 
enactment."  Sutherland,  Stat.  Const.  283.  "Where  there  are  earlier  acts 
relating  to  the  same  subject,  the  survey,  must  extend  to  them.  They 
all  are,  for  the  purpose  of  construction,  considered  as  forming  one 
homogeneous  and  consistent  body  of  law,  and  each  of  which  may  explain 
and  elucidate  every  other  part  of  the  common  system  to  which  it 
applies."    Endlich,  Interpretation  of  Stat.  §  43. 

Thus,  in  United  States  v.  Moore,  161  Fed.  513,  88  C.  C.  A.  455,  the 
Circuit  Court  of  Appeals  for  this  circuit  held  that  the  Act  of  July  4, 
1884,  23  Stat.  79,  the  Act  of  March  3,  1905,  33  Stat.  1064,  and  the  Act 
of  March  8,  1906,  34  Stat.  55,  relating  to  certain  Indian  lands,  were  in 
pari  materia,  and  the  two  later  acts  were  examined  and  considered  by 
the  court  in  determining  the  validity  of  a  conveyance  made  years  before 
their  passage.  When  these  several  coal  land  acts  are  construed  togther, 
I  am  convinced  that  Congress  never  intended  that  an  association  of 
individuals  should  be  able  to  acquire  title  to  vast  areas  of  coal  land  in 
the  district  of  Alaska  or  elsewhere  by  means  and  devices  such  as  are 
set  forth  in  this  indictment. 

It  was  urged  in  argument  that  criminal  statutes  must  be  strictly  con- 
strued, and  this  rule  is  elementary,  but  it  has  no  application  to  the  coal 
land  laws  of  Alaska.  If  the  means  employed  by  these  defendants  to 
acquire  title  to  the  coal  lands  in  question  are  illegal  and  a  fraud  upon 
the  United  States,  it  must  be  so  declared  in  every  court  in  which  the 
question  arises,  whether  that  court  is  exercising  civil  or  criminal  jurisdic- 
tion. On  the  trial  of  the  action  questions  of  criminal  intent  and  other  like 
questions  peculiar  to  penal  laws  may  arise,  but  they  are  not  presented 
at  this  stage  of  the  case,  and  do  not  appear  on  the  face  of  the  indict- 
ment. I  reach  this  conclusion  with  some  hesitation  for  two  reasons: 
First,  because  able  counsel  who  have  argued  the  case  on  behalf  of  the 


744  "Water  and  Mineral  Cases.      [United  States 

defendants  do  not  deem  the  question  even  a  debatable  one ;  and,  second, 
because  the  Circuit  Court  of  the  United  States  for  the  Western  District 
of  Washington  has  reached  a  contrary  conclusion  on  the  same  state  of 
facts.1  Nevertheless  I  am  so  firmly  convinced  of  the  correctness  of  the 
conclusions  here  announced  that  my  judgment  will  yield  only  to  the 
mandate  of  some  court  of  superior  jurisdiction. 
The  demurrer  is  overruled. 


1  See  United  States  v.  Munday,  ante. 


APPENDIX. 

Forms  for  the  organization  of  a  special  drainage  district  under  the 

statutes    of    Illinois    from   the   preliminary   bond   to   the 

contract  for  the  work   and  the  contractor's 

bond.  * 

Cost    Bond. 

Know  all  men  by  these  presents,  that  we,  W.  S.  McCullough,  E.  W.  Lawton  and 
J.  M.  Curtis  are  held  and  firmly  bound  unto  the  People  of  the  State  of  Illinois, 
for  the  use  of  the  officers  of  the  County  Court  of  Bureau  County  in  the  State  of 
Illinois,  and  of  all  other  parties  to  whom  costs  have,  or  shall  have  accrued  by  virtue 
of  the  proceedings  hereinafter  mentioned,  in  the  penal  sum  of  five  hundred  (500) 
dollars,  good  and  lawful  money  of  the  United  States,  for  the  faithful  payment  of 
which,  well  and  truly  to  be  made  we  bind  ourselves,  our  heirs,  executors  and  admin- 
istrators, jointly  and  severally,  firmly  by  these  presents. 

Signed  and  sealed  with  our  seals  and  delivered  this  1st  day  of  April,  A.  D.  1899. 
The  condition  of  the  above  obligation  is  such  that  whereas,  a  certain  petition 
for  the  formation  and  organization  of  a  special  drainage  district,  known  as  The 
Mineral  Marsh  Special  Drainage  District  in  the  Counties  of  Bureau  and  Henry  and 
State  of  Illinois,  comprising  lands  situated  in  the  Townships  of  Mineral  and  Gold 
in  Bureau  County,  and  Annawan  and  Alba  in  Henry  County,  signed  by  W.  S.  Mc- 
Cullough and  others,  is  about  to  be  presented  to  the  County  Court  of  Bureau  County, 
Illinois,  accompanied  with  this  bond.  Now,  therefore,  if  the  above  named  obligors 
herein  shall  well  and  truly  pay  or  cause  to  be  paid  all  costs  in  said  proceeding  to 
the  officers  of  said  County  Court  of  Bureau  County,  Illinois,  and  to  all  other  parties 
interested,  which  have  accrued,  or  shall  have  accrued,  in  case  said  district  be  not 
established,  then  this  obligation  to  be  void,  otherwise  to  be  and  remain  in  full 
force  and  effect. 

(signed)     W.  S.  McCtjllough     (seal). 

(signed)     E.  W.  Lawtok  (seal). 

(signed)     J.  M.  Cubtis  (seal). 

Petition  to  the  County  Court. 

To  the  Honorable  Bichard  M.  Skinner,  Judge  of  the  County  Court  of  the  County  of 
Bureau  in  the  State  of  Illinois: 
The  undersigned  petitioners,  respectfully  represent  unto  your  honor  that  they 
are  each  of  lawful  age  and  are  together  a  majority  in  number  of  the  adult  owners 
of  the  lands  lying  within  the  proposed  special  drainage  district  hereinafter  described, 
and  that  they  are  also  the  owners,  in  the  aggregate,  of  more  than  one-third  of  the 
lands  within  said  proposed  drainage  district,  and  that  they  are  also  the  owners,  in 
the  aggregate  of  a  major  part  of  the  lands  within  said  proposed  drainage  district, 


♦These  forms  are  those  actually  employed  in  the  formation  of  the  Mineral  Marsh 
Special  Drainage  District,  Bureau  and  Henry  Counties,  Illinois,  and  are  furnished  us 
by  the  courtesy  of  Mr.  Geo.  S.  Skinner  of  Princeton,  Illinois,  attorney  fgor  the  pe- 
titioners in  the  case. 

(745) 


746 


Water  and  Mineral.  Cases. 


and  that  they  also  constitute,  when  taken  together,  more  than  one-third  of  the  owners 
of  the  lands  within  said  proposed  special  drainage  district. 

Your  petitioners  further  represent  that  the  lands  situated  and  lying  within  the 
boundaries  of  and  comprising  said  proposed  district  are  situated  in  four  townships 
in  different  counties,  and  that  a  major  part  of  said  lands  are  situated  in  Bureau 
County,  and  that  said  lands  are  low,  wet  and  flat  and  require  a  combined  system 
of  drainage  and  protection  from  overflow  and  wash,  and  your  petitioners  desire 
that  a  special  drainage  district  may  be  organized  embracing  and  comprising  the 
lands  hereinafter  described,  for  the  purposes  of  constructing,  repairing  and  main- 
taining a  ditch,  or  ditches,  a  drain  or  drains,  an  embankment,  or  embankments,  a 
grade,  or  grades,  or  any  or  either  of  them,  or  all,  within  said  proposed  drainage 
district,  for  agricultural  and  sanitary  purposes,  by  special  assessment  upon  the  lands 
and  property  benefited  thereby. 

Your  petitioners  further  represent  and  show  that  the  names  of  the  owner  or  owners 
of  each  tract  of  land  within  said  proposed  district,  so  far  as  known,  together  with 
his  or  her  or  their  post  office  address,  will  hereinafter  be  found  opposite  each  several 
tract  comprising  said  district,  respectively,  the  same  being  arranged  in  schedule 
form  as  a  part  of  this  petition,  and  when  the  owner  or  owners  of  any  specified  tract 
are  not  known  that  fact  is  so  stated,  and  when  the  post  office  address  of  any  of  said 
owners,  whether  named  or  unknown,  is  unknown  that  fact  is  also  so  stated  herein. 

Your  petitioners  further  represent  and  show  that  the  names  of  the  owner  or 
owners  (of  each  tract  of  land  within  said  proposed  district,  so  far  as  known,  together 
with  his  or  her  or  their  post  office  address,  will  hereinafter  be  found  opposite  each 
several  tract  comprising  said  district,  respectively,  the  same  being  arranged  in 
schedule  form  as  a  part  of  this  petition,  and  when  the  owner  or  owners  of  any 
specified  tract  are  not  known  that  fact  is  so  stated,  and  when  the  post  office  address 
of  any  of  said  owners,  whether  named  or  unknown,  is  unknown  that  fact  is  also 
bo  stated  herein. 

Your  petitioners  therefore  pray  that  a  special  drainage  district,  to  be  named  and 
known  as  The  Mineral  Marsh  Special  Drainage  District  in  the  Counties  of  Bureau 
and  Henry  and  State  of  Illinois,  may  be  organized  under  and  in  pursuance  of  the 
provisions  of  an  act  of  the  General  Assembly  of  the  State  of  Illinois,  entitled,  "An 
Act  to  provide  for  drainage  for  agricultural  and  sanitary  purposes,  and  to  repeal 
certain  acts  therein  named,"  approved  June  27th,  1885,  in  force  July  1st,  1885,  and 
amendments  thereof,  for  the  purposes  of  constructing,  repairing  and  maintaining 
a  ditch,  or  ditches,  a  drain,  or  drains,  an  embankment,  or  embankments,  a  grade 
or  grades,  or  all,  any,  or  either  of  them,  within  the  limits  of  said  proposed  district 
as  designated  by  the  list  of  lands  herein  below  following,  by  special  assessment 
upon  the  lands  and  property  benefited  thereby,  the  said  lands,  tract  by  tract,  with 
the  owners'  names  and  post  office  addresses,  so  far  as  known,  set  opposite,  relatively 
and  respectively,  being  as  follows,  to-wit: 
Description  of  Lands  Owners'  Names     Post  Office  Addresses 


a, 

00 

CD 

Sub-divisions 

a 

In 

n 

3 

u 

o 

H 

M 

o 

o 

ft 

NW   % 

4J 

16) 

6 

Bureau 

j  41.79 

1      James   Giltner 

Putnam,   Illinois 

[Here  follow  other  names  and  descriptions.] 


State  of  Illinois, 

)*  ss. 
Bureau  County. 


Appendix.  747 

Drainage   Notice. 

} 

In  the  County  Court,  June  Term,  A.  D.  1899.  % 

In  the  matter  of  the  Organization  of  the  Mineral  Marsh  Special  Drainage  District 

in  the  Counties  of  Bureau  and  Henry  and  State  of  Illinois. 
To  all  whom  it  may  concern: 

Notice  is  hereby  given  that  on  the  6th  day  of  June,  A.  D.  1899,  there  was  presented 
to  the  County  Court  of  Bureau  County  (being  the  County  in  which  the  greater  part 
of  the  lands  hereinafter  described  are  situated)  a  petition  signed  by  W.  F.  Lawton, 
now  deceased,  W.  S.  McCullough  and  others  asking  for  the  organization  of  a  special 
drainage  district  to  be  known  as  The  Mineral  Marsh  Special  Drainage  District  in 
the  Counties  of  Bureau  and  Henry  and  State  of  Illinois,  which  said  petition  is  in 
the  words  and  figures  following,  to  wit:    (here  in  the  notice  given  was  set  out  the 

petition  ante  No.  2 ) . 

And  all  persons  interested  are  hereby  informed  and  notified  that  a  hearing  on 
said  petition  will  be  had  at  the  July  Term,  A.  D.  1899,  on  Monday,  July  3d  at  the  hour 
of  ten  o'clock  a.  m.  at  the  County  Court  Rooms  in  the  Court  House  in  the  City  of 
Princeton,  Bureau  County,  State  of  Illinois,  when  and  where  all  persons  interested 
mav  appear  and  be  heard  if  they  see  fit  so  to  do. 

'  (signed)     William  Wilson, 

County  Clerk  of  Bureau  County  and  Clerk  of  the  County  Court  of  said  County, 
(signed)     Geo.   S.   Skinneb,   Attorney  for  Petitioners. 

Certificate  of   Mailing   Notices. 

State  of  Illinois,     "^ 
Bureau  County.  J 

I  William  Wilson,  County  Clerk  of  Bureau  County,  Illinois,  do  hereby  certify 
that  on  June  15th  A  D.  1899,  I  did  mail  a  notice  of  which  the  drainage  notice 
"a££dT.  true  copy,  to  each  of  the  ^^^ZVT^T^ 
Anna  Elizabeth  Gingrich  which  was  mailed  on  June  17th,  A.  D.  1899),  wMcn 
no"e  wa  enclosed  fn  an  envelope  and  postage  prepaid  by  me  and  addressed  to 
the  respective  and  corresponding  post  office  address  for  each  of  «d  P««  - 
shown  below,  and  that  said  notices  thus  mailed  by  me  were  exact  copies  of  the 
one  hereto  attached,  and  that  such  copy  of  said  notice  was  thus  mailed  by  me  to 
each  person  owning  lands  in  the  proposed  drainage  district,  whose  name  or  post 
office  address,  or  pface  of  residence  is  given,  in  the  petition  set  out  in  said  notice, 
whether  his  or  her  name  appears  signed  to  said  petition  or  not,  to  ™t: 

_.ni  Putnam,    Illinois. 

James    Giltner 

THere  follow  other  names.] 

I  further  certify  that  I  caused  a  like  notice  to  be  published  in  the  Bureau  County 
Times,  a  weekly  and  public  newspaper  of  general  circulation,  printed  and  published 
in  Sheffield,  in  Bureau  County,  Illinois,  for  three  successive  weeks  prior  to  the  day 
fixed  in  said  notice  for  a  hearing  on  said  petition,  and  also  a  like  notice  to  be 
published  in  the  Atkinson  Herald,  a  weekly  and  public  newspaper  of  general  circula- 
tion printed  and  published  in  Atkinson  in  Henry  County,  Illinois,  for  three  succes- 
sive weeks  prior  to  the  day  fixed  in  said  notice  for  a  hearing  on  said  petition,  the 


748  Water  and  Mineral  Cases. 

first  publication  in  each  of  said  papers  being  more  than  twenty  days  before  the 
time  fixed  in  said  notice  for  a  hearing  on  said  petition. 

And  I  further  certify  that  I  gave  other  and  further  notice  of  said  proceeding 
by  causing  to  be  posted  like  notices  in  five  public  places  in  each  of  the  four  town- 
ships in  which  said  proposed  drainage  district  is  situated,  that  is  to  say,  five  in  the 
township  of  Mineral,  five  in  the  township  of  Gold,  in  Bureau  County,  and  five  in  the 
township  of  Annawan,  and  five  in  the  township  of  Alba,  in  Henry  County,  and  that 
each  and  all  of  said  notices  were  so  posted  at  least  twenty  days  prior  to  the  day 
fixed  in  said  notice  for  a  hearing  on  said  petition,  all  of  which  will  more  fully 
appear  by  the  affidavit  of  posting  and  the  respective  certificates  of  the  publishers 
of  the  publication  of  said  notice,  herewith  filed  in  this  proceeding. 

Witness  my  official  hand  and  the  seal  of  said  court  this  3d  day  of  July,  A.  D. 
1899.  (signed)     William  Wilson, 

County  Clerk   of   Bureau   County,   Illinois. 


Order  Temporary   Organization,   Appointment   of   Commissioners   and    Fixing 
Date  for  Hearing  on   Report. 

State  of  Illinois, 
Bureau  County. 

In  the  County  Court,  July  Term,  A.  D.   1899. 
In  the  matter  of  the  Petition  for  the  Organization  of  the  Mineral  Marsh   Special 
Drainage  District  in  the  Counties  of  Bureau  and  Henry  and  State  of   Illinois. 

And  now  this  cause  coming  on  for  further  hearing,  pursuant  to  the  continuance 
thereof  on  July  3d,  1899,  at  which  last  mentioned  date,  being  the  time  fixed  by 
order  of  this  court  entered  herein  June  6th,  1899,  for  the  hearing  on  said  petition, 
came  the  petitioners,  W.  S.  McCullough  and  others  and  George  S.  Skinner,  their 
attorney  for  them,  and  read  and  submitted  to  the  court  the  original  petition  filed 
herein  June  6th,  1899,  and  the  bond  of  petitioners,  W.  S.  McCullough,  E.  W. 
Lawton  and  J.  M.  Curtis  filed  with  and  accompanying  said  petition,  and  there- 
upon, on  motion  of  petitioners,  leave  of  court  to  amend  the  petition  was  granted 
on  said  motion  and  the  petition  accordingly  amended  by  substituting  the  name  of 
Anna  Elizabeth  Gingrich,  in  place  of  that  of  John  Wagner,  who  has  been  long  dead, 
as  the  owner  of  the  tract  described  in  said  petition  as  the  "SE  qr  SW  qr  4 — 16 — 6," 
40  acres  in  Bureau  County,  and  also  by  adding  to  said  petition  as  signers  thereto 
the  names  of  Henry  F.  Rieder,  Robert  J.  Rieder,  Fred  E.  Rieder,  Charles  Rieder, 
and  John  E.  Rieder,  their  petition  therefor  having  been  filed  herein  on  said  July  3d 
at  the  said  time  of  hearing,  and  on  further  motion  of  the  petitioners,  M.  U.  Trimble, 
an  attorney  of  this  court,  was  duly  appointed  guardian  ad  litem  for  Emma  Rieder, 
a  minor,  and  landowner  of  lands  in  said  petition  whose  name  is  upon  said  petition 
among  others  as  landowner,  she  being  the  only  person  known  to  petitioners  as  a 
landowner  of  lands  within  the  proposed  district  who  is  a  minor,  and  the  said 
guardian  ad  litem  having  filed  his  answer  for  and  in  behalf  of  said  infant,  Emma 
Rieder,  praying  strict  proof  of  the  matters  alleged  in  said  petition,  and  full  protec- 
tion of  her  interest  in  the  premises,  and  thereupon  the  said  cause  proceeding  to 
a  hearing  upon  the  said  petition,  as  amended:  the  answer  of  the  said  guardian  ad 
litem,  the  certificate  of  the  clerk  of  the  posting,  publication  and  mailing  of  notice 
of  said  hearing,  the  affidavit  of  Fred  G.  Boyden  of  the  posting  of  notices,  the 
certificate  of  Fred  G.  Boyden,  publisher,  of  the  publication  of  notice  of  the  hearing 
in  the  Bureau  County  Times,  the  certificate  of  D.  Griffin,  publisher,  of  the  publication 


Appendix.  749 

of  notice  of  the  hearing  in  the  Atkinson  Herald,  and  the  affidavits  of  E.  W.  Lawton, 
William  McCabe  and  J.  M.  Curtis  signers  to  said  petition  in  support  of  the  petition, 
all  filed  herein  July  3d,  1899,  and  the  court  having  heard  the  testimony  of  witnesses 
produced  and  examined  in  open  court  touching  the  matters  alleged  in  said  petition, 
especially    the    testimony    of     Henry     Scott,    Scott     Bus  well,    E.    W.    Lawton,     and 
W.  S.  MeCullough  witnesses  sworn  and  examined  in  behalf  of  petitioners,  and  the 
court  thereupon   having  by  announcement  given  opportunity  to   any  person   inter- 
ested to  controvert   any  material  statements  contained  in  said  petition,   and  such 
opportunity  being  especially  extended  to  any  person  owning  lands  within  the  pro- 
posed district,   and  no   person   appearing  to   deny  or   controvert  the  allegations   or 
material   statements   contained   in  the   petition,  the   court   thereupon  continued  the 
further  hearing  of   said   cause   by   announcement  and  by  order   duly  entered   until 
Wednesday,   July   5th,   1899,   at   10  o'clock   a.   m.   with   leave  to  the   petitioners   to 
file  in  the  meantime  a  supplemental  affidavit  in  support  of  their  petition,  and  now, 
on  said  last  mentioned  date,  this  cause  coming  on  as  aforesaid,  and  the  petitioners 
having  filed  herein  their  supplemental  affidavits  of  E.  W.  Lawton,  William  McCabe 
and  J.  M.  Curtis  sworn  to  by  them  July  4th,   1899,  and  setting  forth  matters  not 
fully  covered  in  support  of  said  petition  in  their  former  affidavit  filed  herein  and 
showing  them   to  be   credible   signers   on   said  petition,   and  the   court  now  having 
fully   examined   all   the   aforesaid   papers   and   documents,   including   the   last  men- 
tioned  supplemental   affidavit   filed   herein    July   5th,    1899,    and   having   fully   con- 
sidered the  evidence  in  this  proceeding,  doth  find  therefrom,  that  said  petition  was 
filed  herein  June  6th,  1899,  accompanied  with  a  bond  executed  by  W.  S.  MeCullough, 
E.  W.  Lawton  and  J.  M.   Curtis  in  the  penal  sum  of  five  hundred    (500)    dollars 
running  to  the  People  of  the  State  of  Illinois,  for  the   use  of  the  officers  of  the 
County  Court  of  Bureau  County,  and  to  all  other  parties  to  whom  costs  have,  or 
shall    have,   accrued   by   virtue   of   these   proceedings    in    case   said    district   be   not 
established,   filed   with   said  petition   as   required  by  statute,   and  which   said  bond 
was  duly  approved  by  the  County  Judge  of  said  Bureau  County,  Illinois,  on  said 
June  6th,  1899;  that  said  petition  is  sufficient  in  form  and  is  signed  by  the  owners 
in  the  aggregate  of  more  than  one-third  of  the  lands  lying  in  the  proposed  district, 
and  that  the  signers  thereto  are  the  owners  of  the  major  part  of  the  lands  in  said 
proposed   district,   and   that   said   signers   to   said   petition   constitute   one-third   or 
more  of  the  owners  of  the  lands  within  the  proposed  district ;  that  the  lands  within 
the  proposed  district  are  low,  wet  and  flat  and  require  a  combined  system  of  drainage 
and  protection  from  wash  or  overflow,  and  that  the  petitioners  desire  that  a  special 
drainage   district   may   be   organized    comprising   the    lands   therein   mentioned,    for 
the    purposes   of   constructing,    repairing   and    maintaining    a    ditch,    or    ditches,    a 
drain  or   drains,   an   embankment   or  embankments,   a  grade  or  grades,   or  anv   or 
either  of  them,  or  all,  within  said  proposed  district,  for  agricultural  and  sanitary 
purposes,  by  special  assessment  upon  the  lands  and  property  benefited  thereby;  that 
due  and  proper  notice    (containing  a  copy  of  said   petition)    of  the  filing  of   said 
petition  and  stating  the  term  of  court  and  the  time  and  place  fixed  by  order  of  the 
court  as  aforesaid,  when  said  petition  and  all   parties  interested  would   be  heard, 
has  been  given  by  the  posting  of  notices  in  at  least  five  public  places  in  each  of  the 
four  townships   in   which   said   proposed   district  or   any   part   thereof,   is   situated, 
more  than  twenty  days  before  the  time  fixed  as  aforesaid  for  the  hearing  on  said 
petition,  and  by  the  publication  of  such  notice  for  three  successive  weeks  in  a  weekly 
and  public  newspaper  of  general  circulation  published  in  each  of  the   counties  in 
which   said   proposed    district   or   any   part   thereof   is   situated,   the   publication   of 
such    notice    being    in   the   Atkinson    Herald,    printed    and    published    in    Atkinson, 


750  Watee  and  Mineral  Cases. 

Henry  County,  Illinois,  and  in  the  Bureau  County  Times,  printed  and  published 
in  Bureau  County,  Illinois,  the  first  publication  of  which  said  notice  in  each  of 
said  newspapers  in  said  counties  being  at  least  twenty  days  before  the  day  of 
hearing  fixed  as  aforesaid,  and  by  the  mailing  of  a  copy  of  said  notice  by  the  clerk 
of  this  court  to  each  person  owning  land  in  said  proposed  district  whose  name  and 
post  office  address  or  place  of  residence  is  given  more  than  ten  days  before  the 
time  fixed  for  the  hearing  on  said  petition;  that  said  notice  was  thus  given  by  the 
clerk  of  this  court,  and  that  said  notices  were  thus  posted,  published,  and  mailed 
by  him  or  under  his  authority  and  by  his  direction,  and  that  the  certificate  of  said 
clerk  of  the  giving  of  such  notice  by  posting,  publication  and  mailing  is  in  due 
form,  and  the  certificates  of  publication  of  the  respective  publishers  are  also  in  due 
form  and  regular  and  that  the  court  has  full  jurisdiction  of  the  subject-matter  of 
said  petition  and  of  all  of  the  parlies  thereto. 

The  court  therefore  finds  in  favor  of  the  petitioners,  and  hereby  orders  that 
the  prayer  of  their  petition  be  and  the  same  is  hereby  granted,  and  that  a  tem- 
porary drainage  district  to  be  known  as  the  Mineral  Marsh  Special  Drainage 
District  in  the  Counties  of  Bureau  and  Henry  and  State  of  Illinois,  be  and  the 
same  is  hereby  organized,  embracing  the  lands  described  in  said  petition,  as  therein 
prayed,  and  that  E.  W.  Lawton,  Scott  Bush  well  and  Alonzo  Collins,  be  and  they 
are  hereby  appointed  preliminary  drainage  commissioners  of  said  drainage  district, 
and  it  is  further  ordered  that  said  commissioners  report  to  the  court  on  Tuesday, 
July  25th,  1899,  at  one  o'clock  in  the  afternoon  of  said  day,  being  the  time  hereby 
fixed  for  the  hearing  of  the  said  report  of  said  commissioners  and  to  complete  the 
organization  of  said  drainage  district,  to  which  time  this  cause  is  hereby  continued. 

(signed)     Richard  M.  Skinner, 

County  Judge. 

Oaths  of   Preliminary  Commissioners. 

State  of  Illinois,      "^ 

_  U   ss. 

Bureau  County. 

I,  E.  W.  Lawton,  do  solemnly  swear  that  I  will  support  the  Constitution  of  the 
United  States  and  the  Constitution  of  the  State  of  Illinois,  and  that  I  will  faith- 
fully discharge  the  duties  of  the  office  of  preliminary  drainage  commissioner  of  the 
Mineral  Marsh  Special  Drainage  District  in  the  Counties  of  Bureau  and  Henry 
and  State  of  Illinois,  according  to  the  best  of  my  ability,  so  help  me  God. 

(signed)     E.  W.  Lawton. 
Subscribed  and  sworn  to  before  me  this  8th  day  of  July,  A.  D.  1899. 

(signed)     Geo.  W.  Boyden. 
(Seal)  Notary  Public. 

Commissioners'  Report  with  Engineer's  Report. 

State  of  Illinois,      ""i 

tss. 

In  the  County  Court,  August  Term,  A.  D.  1899. 
In  the  matter  of  the  Organization  of  the  Mineral  Marsh  Special  Drainage  District 
in  the  Counties  of  Bureau  and  Henry  and  State  of  Illinois. 

The  undersigned,  Drainage  Commissioners  of  said  District  beg  leave  to  submit 
the  following  report  of  their  acts  and  doings  in  the  matter  before  them,  pursuant  to 


Appendix.  751 

the  order  of  the  court  under  which  they  were  appointed,  and  hearing  date  July  5th, 
1899,  with  their  recommendations  concerning  the  proposed  work. 

The  said  undersigned  Commissioners,  having  upon  their  appointment  first  duly 
qualified  by  taking  the  constitutional  oath  of  office  required  by  law,  did  thereupon 
at  once  enter  upon  the  duties  of  their  said  office,  and  in  pursuance  of  law,  did 
proceed  to  the  examination  of  the  lands  in  said  proposed  district  and  personally 
examine  the  same  and  did  employ,  W.  A.  Darling,  a  competent  civil  engineer  to 
make  all  necessary  surveys  and  estimates  as  in  the  judgment  of  said  commissioners 
was  thought  necessary  and  proper,  and  as  he  was  directed  by  them,  the  report 
and  estimates  of  the  said  engineer  concerning  the  costs  of  the  construction  of  the 
proposed  ditches  being  herewith  presented  and  hereto  attached  and  made  a  part 
of  this  report. 

And  said  commissioners  having  from  their  own  personal  examination  of  the 
lands  mentioned  in  the  petition  for  the  organization  of  said  district  and  from  the 
report  and  estimates  of  said  engineer  aforesaid,  and  from  his  other  information  given 
them  more  in  detail  in  line  of  his  employment  and  other  information  and  observa- 
tion, become  quite  well  and  fully  informed  on  the  matters  before  them,  do  respect- 
fully report: 

1st.  That  the  lands  lying  within  the  boundaries  and  limits  of  said  proposed 
district  are  low,  wet  and  flat  and  require  a  combined  system  of  drainage  and 
protection  from  wash  and  overflow  for  agricultural  and  sanitary  purposes. 

2d.  That  by  the  construction  of  proper  and  suitable  ditches  in  said  district 
the  lands  mentioned  in  said  petition  will  be  greatly  benefited  and  their  value  for 
agricultural  purposes  enhanced  in  the  aggregate  not  less  than  twenty  (20)  dollars 
per  acre  on  an  average  throughout  said  district,  or  somewhere  about  two  hundred 
thousand  (200,000)  dollars  as  a  whole,  and  in  any  event  an  amount  greatly  exceed- 
ing the  total  cost  of  the  improvements  and  the  costs  and  expenses  incident  to  the 
organization  of  the  district. 

3d.  That  the  public  highways  in  said  district  will  in  our  judgment  be  benefited, 
and  in  the  event  laterals  are  constructed  in  places  on  the  highways  the  benefit  to  the 
highways  in  places  will  be  considerable. 

4th.  The  commissioners  have  been  in  correspondence  with  Government  officers 
concerning  the  relations  of  the  proposed  ditches  to  the  right  of  way  of  the  Illinois 
and  Mississippi  Canal  running  through  said  district,  and  from  prospects  will  be- 
able  to  co-operate  with  the  Government  authorities  in  locating  and  constructing 
the  ditches  of  the  district  and  in  crossing  the  right  of  way  for  said  canal,  to  the 
mutual  advantage  and  benefit  of  both  the  Government  and  said  district. 

5th.  That  the  approximate  cost  of  the  constructing  the  necessary  main  ditches  and 
laterals,  including  the  reasonable  estimate  on  obtaining  the  necessary  rights  of 
way  thereof,  and  including  the  engineering  work  and  surveying  will  be  some  forty 
thousand  (40,000)  dollars,  and  we  estimate  the  other  expenses,  that  is,  the  court 
costs,  attorneys'  fees,  commissioners'  compensation,  printing  and  incidental  costs 
and  expenses  at  about  five  thousand  (5,000)  dollars. 

We  employed  said  engineer  believing  the  services  of  such  help  to  be  indispensable 
and  in  our  opinion  desirable  and  necessary,  and  in  his  report  to  us  he  includes 
reference  to  the  plat  marked  "Exhibit  A"  which  is  herewith  filed  and  presented, 
and  reference  made  for  such  general  information  concerning  the  lay  of  the  ditches 
recommended  for  said  district,  which  in  some  small  and  not  material  respects  may 
be  changed  as  better  acquaintance  with  the  lands  may  warrant. 


752  Water  and  Mineral  Cases. 

In  conclusion,  from  our  acquaintance  with  the  lands  in  said  district  after  such 
especial  examinations  made  by  us  and  the  data  furnished  us  by  said  engineer  we 
recommend  the  order  of  the  court  for  a  final  organization  of  said  district,  as 
desirable  and  necessary.  Respectfully  submitted, 

Princeton,   Illinois,   September   1st,    1899. 

(signed)     E.  W.  Lawton, 
(signed)     Alonzo  Collins, 
(signed)     Scott  Bus  well, 

Commissioners  as  aforesaid- 


} 


Engineer's   Report. 

State  of  Illinois, 
Bureau  County. 

In  the  County  Court,  August  Term,  A.  D.   1899. 
In  the  matter  of  the  Organization  of  the  Mineral  Marsh  Special  Drainage  District 

in  the  Counties  of  Bureau  and  Henry  and  State  of  Illinois. 
To  E.  W.  Lawton,  Alonzo  Collins  and  Scott  Buswell,  Drainage  Commissioners  of 
said  Drainage  District. 

The  undersigned  having  been  employed  by  you  to  make  all  necessary  surveys  and 
estimates  in  reference  to  the  costs  and  expenses  of  the  construction  of  all  necessary 
ditches  and  embankments  and  grades  for  the  thorough  drainage  of  the  lands  in  said 
district,  would  respectfully  report,  as  follows: 

That  in  pursuance  of  your  instructions  and  according  to  your  directions  I  have 
made  all  necessary  surveys  and  estimates  of  the  costs  of  such  improvements,  and 
would  report  the  following  estimates,  to  wit: 

1st.  For  the  construction  of  one  main  ditch  of  about  eight  miles  in  length, 
and  one  shorter  main  ditch  of  about  one  and  one-half  (IY2)  miles  in  length,  both 
main  ditches  to  be  of  about  a  fifty  (50)  foot  average  width  and  of  about  eight  (8) 
foot  depth;  and  the  necessary  laterals  of  a  number  not  yet  ascertainable  exactly, 
but  comprising  in  all  somewhere  about  nine  (9)  miles  in  length  of  ordinary  dimen- 
sions otherwise,  including  costs  of  necessary  surveying  and  engineering  work  and 
expenses,  and  the  obtaining  of  necessary  rights  of  way,  about  forty  thousand 
(40,000)    dollars. 

2d.  A  large  part  of  the  work  of  constructing  the  necessary  ditches,  and  especially 
the  main  ditches  will  be  on  lines  and  routes  of  old  ditches  now  existing. 

3d.  The  carrying  out  of  the  proposed  work,  as  indicated  in  the  maps  and 
estimates  by  me  made,  to  a  completion  will  be  of  a  great  benefit  to  the  lands  in 
said  district,  and  I  estimate  such  benefit  to  be  of  twenty  (20)  dollars  per  acre  on  an 
average  to  all  the  lands  in  the  said  district,  and  those  figures  are  the  minimum 
benefit  in  my  judgment. 

I  submit  herewith  a  plat  of  the  proposed  work  made  as  the  result  of  my  surveys, 
dated  August  7th,  1899,  and  signed  by  me,  and  marked  "Exhibit  A,"  to  give  general 
information  of  the  courses  of  the  proposed  main  ditches,  though  the  same  is  subject 
to  some  little  changes. 

Respectfully   submitted,    September    1st,    1899. 

(signed)     W.  A.  Darling, 

Civil  Engineer. 


Appendix.  753 

Order  for  Final  Organization. 


State  of  Illinois, 
Bureau  County. 


In  the  County  Court,  September  Term,  A.  D.  1899. 
In  the  matter  of  the  Organization  of  the  Mineral  Marsh  Special  Drainage  District 
in  Bureau  and  Henry  Counties  and  State  of  Illinois. 

And  now  on  this  eleventh  day  of  September,  A.  D.  1899  said  cause  coming  on 
to  be  heard  upon  the  report  of  E.  W.  Lawton,  Alonzo  Collins  and  Scott  Buswell, 
the  commissioners  heretofore  appointed  by  the  court  in  and  by  the  order  of  the 
court  entered  in  this  proceeding  July  5th,  1899,  and  thereby  directed  to  report 
to  the  court  on  Tuesday,  July  25th,  1899,  at  one  o'clock  in  the  afternoon  of  said 
day,  and  this  cause  on  said  last  mentioned  date  having  been  continued  by  the 
order  of  the  court  then  entered  upon  the  written  motion  of  said  commissioners 
then  filed  and  presented  for  the  purpose  until  August  8th,  1899,  at  one  o'clock  p.  m. 
of  said  day  for  further  time  to  obtain  necessary  information  on  which  to  found  their 
report,  and  on  said  last  mentioned  date  this  cause  having  again  been  continued  by 
the  order  of  the  court  then  entered  upon  the  written  motion  of  the  commissioners 
aforesaid  then  filed  and  presented  for  the  purpose,  showing  their  inability  to  properly 
report  for  want  of  necessary  time  to  obtain  the  information  and  data  on  which  to 
found  their  report,  to  and  until  September  1st,  1899,  at  one  o'clock  p.  m.  of  said 
day,  and  on  said  last  mentioned  date,  pursuant  to  the  continuance  of  said  cause 
from  time  to  time  as  aforesaid,  the  said  commissioners  having  come  into  court  and 
filed  and  presented  to  the  court  their  report  in  writing,  including  the  report  of 
their  engineer  to  them,  together  with  said  engineer's  map  or  plat  marked  "Exhibit 
A"  referred  to  in  said  report,  and  thereupon  the  court  having  of  its  motion  entered 
an  order  on  said  September  1st,  1899,  that  all  parties  owning  lands  in  said  proposed 
district  and  all  parties  interested,  should  file  or  make  known  objections  and  excep- 
tions to  said  report  and  to  said  engineer's  map  filed  therewith  marked  "Exhibit  A," 
by  September  11th,  1899,  at  one  o'clock  p.  m.  of  said  day,  and  said  cause  having 
been  continued  until  said  last  mentioned  date  for  the  purpose  of  allowing  and 
permitting  such  objections  and  exceptions  to  said  report  to  be  filed  and  made, 
and  now  on  said  last  mentioned  date,  pursuant  to  said  last  continuance,  come 
a^ain  into  court,  the  said  commissioners  in  person,  and  also  by  Geo.  S.  Skinner,  their 
attorney,  and  also  comes  M.  U.  Trimble,  guardian  ad  litem  for  Emma 
Rieder,  a  minor,  the  said  Trimble  being  an  attorney  of  this  court  and  hereto- 
fore appointed  and  filed  answer  as  such  guardian  ad  litem  for  said  minor,  and  it  now 
appearing  to  the  court  that  no  person  or  party  whatever  has  filed  or  made  objec- 
tion to  the  said  report  of  said  commissioners  within  the  time  given  for  the  purpose 
as  aforesaid,  and  the  court  having  heard,  read  and  made  examination  of  said  com- 
missioners' report,  and  having  heard  the  testimony  of  W.  A.  Darling,  civil  engineer, 
employed  by  said  commissioners  in  and  about  their  work,  and  of  E.  W.  Lawton, 
Alonzo  Collins  and  Scott  Buswell,  commissioners  as  aforesaid,  each  and  all  having 
been  duly  sworn  and  examined  as  witnesses  in  support  of  said  report,  and  of  the 
engineering  work  and  map  referred  to  in  said  report,  and  on  motion  of  said  com- 
missioners leave  being  granted  to  them  to  file  a  supplemental  map  known  as 
"Exhibit  B"  in  correction  of  some  minor  details  and  more  complete  outlines  of 
the  ditches  of  said  district,  and  the  said  supplemental  map  marked  "Exhibit  B" 
having  been  accordingly  filed,  and  the  court  upon  inspection  of  the  said  commis- 
sioners' report,  and  the  engineer's  report  included  therein,  and  the  maps  "Exhibit 
A"  and  "Exhibit  B,"  and  after  hearing  the  testimony  of  said  witnesses  touching 
VV.  &  H.— 48 


754  Water  and  Mineral  Cases. 

the  character,  scope,  expense,  benefits  and  location  of  the  work  which  will  be 
involved  to  meet  the  prayer  of  the  petition  for  said  drainage  district,  and  having 
heard  the  presentation  of  affairs  concerning  said  district  and  the  arguments  of 
counsel  in  the  case,  and  being  now  fully  advised  in  the  premises  doth  find,  that 
the  lands  included  in  said  proposed  drainage  district  will  be  benefited  for  agri- 
cultural and  sanitary  purposes  by  the  adoption  and  completion  of  a  proper  system 
of  drainage  for  said  lands;  that  the  preliminary  proceedings  in  this  cause  are 
all  regular  and  in  due  form  and  that  the  court  has  full  and  complete  jurisdiction 
of  the  subject-matter  and  of  all  the  parties  to  this  proceeding;  that  immediately 
upon  the  said  commissioners  being  appointed  by  this  court  in  and  by  its  said  order 
of  July  5th,  1899,  they,  the  said  commissioners,  E.  W.  Lawton,  Alonzo  Collins  and 
Scott  Buswell,  duly  qualified  as  such  commissioners  by  taking  the  constitutional 
oath  of  office  and  thereupon  at  once  proceeded  to  the  examination  of  the  lands 
in  said  proposed  district,  and  went  upon  the  lands  included  in  said  proposed 
district,  and  personally  examined  the  same,  and  that  the  services  of  a  competent 
civil  engineer  became  necessary  to  aid  the  said  commissioners  in  and  about  their 
work,  and  that  they  accordingly  employed  W.  A.  Darling,  civil  engineer,  of  Rock 
Island,  Illinois,  and  that  said  W.  A.  Darling  is  such  competent  civil  engineer, 
and  that  said  civil  engineer  made  such  estimates  and  surveys  as  he  was  directed 
by  said  commissioners  to  make  and  reported  the  same  to  said  commissioners  together 
with  said  maps  marked  "Exhibit  A"  and  "Exhibit  B";  that  said  commissioners 
adopted  said  report  of  said  civil  engineer  as  a  part  of  their  said  report  to  this 
court;  that  the  necessary  and  proper  drainage  of  said  district  will  require  a  com- 
bined system  of  drainage  by  the  construction  of  one  main  ditch  of  about  eight  (8) 
miles  in  length,  and  one  shorter  main  ditch  of  about  one  and  one-half  (1%)  miles 
in  length,  both  main  ditches  to  be  of  about  fifty  (50)  foot  average  width  and 
about  eight  (8)  feet  average  depth,  and  several  lateral  ditches  comprising  in  all 
about  nine  (9)  miles  of  such  lateral  ditches  of  small  and  variable  dimensions; 
that  the  estimated  cost  of  constructing  said  main  and  lateral  ditches  including 
the  obtaining  the  necessary  rights  of  way  therefor  and  the  surveying  and  engineer- 
ing expenses  and  work  incident  thereto  is  forty  thousand  (40,000)  dollars,  and 
that  the  other  estimated  costs  and  expenses,  that  is  to  say,  the  court  costs, 
attorneys'  fees,  commissioners'  compensation,  printing  and  incidental  costs  and 
e?q>enses  is  five  thousand  (5,000)  dollars,  or  a  total  estimated  cost  of  about  forty- 
five  thousand  (45,000)  dollars  for  the  completion  of  the  proper  system  of  drainage 
for  the  lands  of  said  district  and  carrying  on  the  organization  of  the  district  to 
such  time;  that  the  lands  in  said  district  are  low,  wet  and  flat  and  require  such 
a  combined  system  of  drainage  and  protection  from  wash  and  overflow  for  agricul- 
tural and  sanitary  purposes;  that  the  construction  of  such  a  system  of  drainage, 
based  on  the  estimates  aforesaid,  will  greatly  benefit  the  lands  in  said  district 
and  very  materially  increase  their  value;  that  the  benefits  to  said  lands  and  the 
increase  in  value  thereof  will  greatly  exceed  the  cost  of  the  proposed  work,  and 
that  the  benefits  to  said  lands  and  the  natural  increase  in  the  value  of  said  lands 
from  the  construction  of  such  a  proposed  system  of  drainage  as  is  contemplated 
and  on  the  basis  Of  the  aforesaid  estimates  will  be  not  less  than  twenty  (20) 
dollars  per  acre  throughout  said  district  on  an  average,  or  an  aggregate  benefit 
to  said  lands  as  a  whole  of  near  about  two  hundred  thousand  (200,000)  dollars, 
and  that  the  case  involves  a  system  of  combined  drainage  in  four  different  town- 
ships, two  of  which  are  in  Bureau  County  and  two  in  Henry  County,  to  wit:  Alba 
Township,  known  as  township  seventeen  (17)  North  Range  five  (5),  and  Anna  wan 
Township,  known  as  township  sixteen    (16)    North  Range   five    (5),  both  in  said 


Appendix. 


755 


Henry  County,  and  Gold  Township,  known  as  township  seventeen  (17)  North  Range 
bix  (6)  and  Mineral  Township,  known  as  township  sixteen  (16)  North  Range  six 
(6),  both  the  latter  in  said  Bureau  County,  and  all  four  of  said  townships  being 
contiguous  to  each  other,  and  situated  East  of  the  Fourth  Principal  Meridian  in 
tue  State  of  Illinois,  and  the  court  further  finds  that  in  order  to  obtain  the  proper 
outlet  and  necessary  fall  for  the  longer  of  said  main  ditches  it  will  be  necessary 
to  go  beyond  the  limits  of  the  boundaries  of  said  proposed  district,  a  distance  of  one 
(1)    mile  or  thereabouts  for  the  purpose  of  constructing  said  ditch. 

It  is  therefore  ordered  by  the  court  that  the  said  drainage  district  be,  and  the 
same  is  hereby  finally  organized  as  prayed  for  in  said  petition  heretofore  filed  on 
June  6th,  1899,  and  presented  to  the  court  for  the  purpose,  and  that  the  following 
list  of  lands  as  designated  by  the  abbreviated  geographical  descriptions  in  said 
petition,  to  wit, 


(Sub-divisions) 
NW  %  NE  Yi 


Section 
4 


Township 
16 


Range 
6 


County   |    Number  of  Acres 
Bureau  |  41.79 


[Here  follow  other  descriptions.] 
comprising  a  total  of  (9878.68),  nine  thousand  eight  hundred  and  seventy-eight 
and  68-100  acres,  and  embracing  and  including  the  public  highways  within  the 
limits  of  the  territory  covered  by  said  lands  and  thus  described,  and  also  the 
right  of  way  for  the  Illinois  and  Mississippi  Canal  running  through  a  part  of 
the  above  described  lands  within  the  limits  of  said  territory,  be  and  the  same 
are  hereby  ordered  and  declared  to  constitute  a  drainage  district  to  be  known  by 
the  name  and  style  of  "The  Mineral  Marsh  Special  Drainage  District  in  Bureau 
and  Henry  Counties  and  State  of  Illinois,"  and  it  is  further  ordered  that  the  clerk 
of  this  court  give  notice  of  an  election  for  the  election  of  three  drainage  commis- 
sioners for  said  districts  in  the  time  and  manner  provided  by  the  statute  in  such 
cases  made  and  provided,  to  be  held  at  the  Bus  well  farm  house  in  the  Southeast 
quarter  of  section  six  (6),  in  Mineral  Township  in  Bureau  County,  Illinois  being 
about  one  and  one-half  (1%)  miles  northwest  of  the  Village  of  Mineral  in  said 
Bureau  County,  on  Monday,  October  2d,  1899,  and  that  said  above  named  commis- 
sioners heretofore  appointed  by  the  court  proceed  to  conduct  said  election  and  to 
act  as  the  judges  and  clerks  thereof  in  the  manner  provided  by  law. 

It  is  further  ordered  that  the  sum  of  five  (5)  dollars  be  and  the  same  is  hereby 
fixed  as  and  for  the  guardian  ad  litem  fees  of  the  said  M.  U.  Trimble,  for  his 
appearance  at  the  hearing  on  said  commissioners'  report  in  behalf  of  the  said 
infant,  Emma  Rieder,  and  that  said  sum  be  so  taxed  as  costs  in  this  proceeding  by 
the  clerk  of  this  court.  (signed)     Richard  M.  Skinner, 

County  Judge  of  Bureau  County,  Illinois. 

Notice  for  Election  of  Drainage  Commissioners. 

The  legal  voters  and  electors  of  "The  Mineral  Marsh  Special  Drainage  District 
in  Bureau  and  Henry  Counties  and  State  of  Illinois,"  are  hereby  notified  that  an 
election  for  said  District  will  be  held  at  the  Buswell  farm  house  in  the  southeast 
quarter  of  section  six  (6)  in  Mineral  Township,  Bureau  County,  Illinois  being 
about  one  and  one-half  (1%)  miles  northwest  of  the  Village  of  Mineral  in  said 
Bureau  County,  on  Monday,  October  2d,  1899,  to  elect  three  drainage  commissioners 


756  Water  and  Mineral  Cases. 

for  said  Drainage  District.     The  polls  of  said  election  will  be  opened  at  the  hour  of 
ten    (10)    o'clock  a.  m.,  and  closed  at  the  hour  of  four    (4)    o'clock  p.  m.  of  said 

day. 

(signed)     Wm.  Wilson, 
County    Clerk   of   Bureau   County,   Illinois   and  ex  officio    Clerk   of   said   Drainage 
District. 

Proof  of  Posting   Election   Notices. 

State  of  Illinois, 
Bureau  County. 

E.  W.  Lawton,  being  first  duly  sworn  on  his  oath  says  that  at  the  instance  of 
William  Wilson,  county  clerk  of  Bureau  County,  Illinois,  and  ex  officio  clerk  of  The 
Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry  Counties  and  State 
of  Illinois,  and  in  his  behalf,  he,  said  affiant,  on  the  19th  day  of  September,  A.  D. 
1899,  being  more  than  ten  days  prior  to  the  election  hereinafter  referred  to, 
posted  five  notices,  of  each  of  which  the  within  notice  is  a  true  copy,  in  the 
following  five  public  places  in  or  near  said  drainage  district,  to  wit:  one  in  the 
post  office  in  the  Village  of  Mineral  in  Bureau  County;  one  at  the  corner  of  the 
roads  at  the  north  quarter  corner  of  section  twenty  (20)  in  Gold  Township, 
Bureau  County,  Illinois;  one  in  the  post  office  in  the  Village  of  Annawan  in  Henry 
County,  Illinois;  one  on  the  bridge  in  the  road  where  it  crosses  Hickory 
Creek  in  section  twenty-seven  (27)  in  Alba  Township,  in  Henry  County, 
Illinois;  and  one  in  the  grain  office  of  J.  Dewey  in  the  Village  of  Annawan,  in 
Henry  County,  Illinois.  Besides  posting  like  notices  in  several  other  public  places 
in  or  near  said  drainage  district,  and  that  all  of  the  notices  thus  posted  as  afore- 
said by  him  were  notices  of  an  election  of  commissioners  of  said  Drainage  District 
at  the  time  and  place  mentioned  and  set  forth  in  the  within  notice,  which  is  a  true 
copy  of  all  of  said  notices  so  posted. 

(signed)     E.  W.  Lawton, 

Subscribed  and  sworn  to  before  me  this  2d  day  of  October,  A.  D.   1899. 
(Seal)  (signed)     C.  N.  Lesteb,  N.  P. 

Report   of   Engineer   upon   a   System   of   Drainage   and    Estimates. 

To  the  Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage  District 
in  Bureau  and  Henry  Counties  and  State  of  Illinois. 
The  undersigned,  a  civil  engineer  and  surveyor,  having  been  employed  by  you 
to  make  the  necessary  surveys,  plans,  maps,  profiles,  estimates,  and  also  specifica- 
tions for  the  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry 
Counties  and  State  of  Illinois,  respectfully  reports  that  his  work  on  the  lines 
aforesaid  has  been  substantially  completed,  and  that  by  way  of  reference  for 
accurate  and  detail  information  on  the  result  of  his  said  work,  he  hereby  makes 
special  reference  to  the  map  of  said  district,  showing  all  the  lands  in  said  district, 
the  location  of  the  several  ditches  and  drains  for  said  district,  the  names  of  the 
owners  of  the  lands  over  which  said  ditches  and  drains  will  run,-  the  names  of  the 
townships  and  all  geographical  descriptions  of  tracts  and  subdivisions  of  lands 
embraced  in  said  district,  which  said  map  is  marked  for  designation  "Exhibit  C" 
and  made  a  part  of  this  report;  also  a  complete  profile  cut,  plat  or  sheet,  accurately 
indicating  the  depth,  surface  levels  and  the  grade  lines  of  all   ditches  and  drains 


Appendix. 


757 


for  said  district,  the  same  being  marked  "Exhibit  D"  and  likewise  made  a  part  of 
this  report;  also  a  map  or  plat  of  cross  cuts  showing  the  cross  sectional  dimensions 
of  all  the  several  ditches  for  said  district,  omitting  the  tile  drains,  marked 
"Exhibit  E,"  and  made  a  part  of  this  report;  and  together  with  the  aid  of  said 
commissioners,  we  formulated  a  set  of  specifications  for  the  different  ditches  and 
drains  for  said  district  and  all  the  work  to  be  done  therein,  and  reference  is  hereby 
also  made  to  said  specifications  for  such  detail  information  as  I  recommend  for 
said  district  in  the  construction  of  the  ditches,  drains  and  work.  The 
data,  including  length  and  dimensions  of  the  ditches  to  be  dug,  the  number  of 
stations  into  which  the  length  of  the  ditch  and  drain  work  is  divided  of  one  hundred 
(100)  feet  each,  the  quantities  of  cubic  excavations,  the  fall  from  point  to  point 
and  throughout,  are  all  given  on  the  above  mentioned  exhibits.  From  the  care 
and  attention  with  which  my  work  was  done,  and  knowledge  of  the  results  from 
such  drainage,  I  am  confident  that  the  completion  of  the  system  of  drainage  herein 
outlined  according  to  the  plans  and  specifications  will  effectually  drain  the  lands 
of  the  district,  and  vastly  increase  the  value  of  the  land,  in  my  judgment  at  least 
one  hundred  per  cent  on  an  average.  I  subjoin  a  table  of  estimates  made  by  me 
for  the  work  contemplated. 

(signed)    A.  H.  Bell, 
Civil  Engineer  and  Surveyor. 
Princeton,  111.,  January  30th,  1900. 

ESTIMATES. 


Main  Ditch,  exclusive  of  old  ditch. 525146  cubic  yards  at  8  cts $42011.68 

Kink   Creek  Ditch    


10666 

Coal  Creek  Ditch    47200 

Elm   Island   Ditch    61155 

North  Ditch    151610 

South  Ditch,  0  to  27    24600 

South  Ditch,  27  to  96    58675 

Goose    Pond   Ditch    18774 


8 


"  853.28 

"  3776.00 

"  4892.40 

"  12128.80 

"  1968.00 

"  4694.00 

"  1502.00 


897826       "         "        "    8    "     $71826.16 

Right  of  Way 6728.25 

Engineering   2000.00 

Court  Costs   2000.00 

Attorneys'  Fees    2000.00 

Commissioners'   Pay    2000.00 

Tile  Drains 4067.00 


Total $90621.41 


Tile  Drain,  "A"  $1095.00 

Tile  Drain,  "B"   891.00 

Tile  Drain,  "C"    1038.00 

Tile  Drain,  "D"  1043.00 


Total  $4067.00 


Respectfully  submitted, 

(signed)     A.  H.  Bell, 

Civil  Engineer  and  Surveyor. 


Princeton,  Ills.,  Jan.  30th,  1900. 


758  Wateb  and  Mineral  Cases. 

Commissioners'    Report    Adopting    System    of    Drainage. 

Report  of  the  determination  of  a  system  of  drainage  by  the  Drainage  Commis- 
sioners of  The  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry 
Counties  and  State  of   Illinois. 


To  the  Honorable  Richard  M.  Skinner,  Judge  of  the  County  Court  of  the  County 
of  Bureau  in  the  State  of  Illinois: 
The  undersigned,  Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage 
District  in  Bureau  and  Henry  Counties  and  State  of  Illinois,  respectfully  report  that 
after  having  been  duly  elected,  and  having  duly  qualified  as  Drainage  Commissioners 
for  said  Drainage  District,  and  as  soon  thereafter  as  practical,  we  went  upon  the  land 
included  in  said  drainage  district,  and  together  with  the  advice  and  assistance 
of  A.  H.  Bell,  a  competent  civil  engineer  and  surveyor  by  us  employed  in  and  about 
such  matters,  determined  upon  a  system  of  drainage  for  said  district,  answerable  in 
our  best  judgments  for  the  needs  and  demands  of  said  district,  which  complete 
system  showing  all  ditches  and  drains  and  all  detail  information  pertaining  to  the 
making  of  the  same,  is  fully  set  out  and  shown  in  the  said  engineer's  report  to 
us  of  this  date  together  with  the  exhibits  marked  "Exhibit  C,"  "Exhibit  D"  and 
"Exhibit  E,"  accompanying  the  said  engineer's  report  and  made  a  part  thereof  and 
filed  therewith. 

The  ditches  shall  be  seven  in  number,  known  respectively  as  the  "Main  Ditch." 
"Kink  Creek  Ditch,"  "Coal  Creek  Ditch,"  "Elm  Island  Ditch,"  "North  Ditch,"  "South 
Ditch,"  and  "Goose  Pond  Ditch,"  and  in  addition  there  shall  be  four  tile  drains 
known  and  indicated  as  "A,"  "B,"  "C"  and  "D,"  and  upon  a  careful  examination 
and  review  of  the  work  of  said  engineer,  his  plats,  maps,  profiles  and  estimates, 
we  hereby  adopt  as  and  for  the  system  of  drainage  for  said  district,  the  said 
engineer's  report  and  exhibits  made  and  formulated  for  that  purpose,  and  we 
hereby  declare  as  and  for  the  system  of  drainage  for  said  district,  the  ditches  and 
drains  thus  outlined  and  identified  and  described  as  providing  when  constructed 
main  outlets  of  ample  capacity  for  the  waters  of  the  district,  having  in  view  the 
future  contingencies  as  well  as  the  present,  and  to  that  end  we  adopt  the  said 
"Exhibit  C"  as  the  map  or  plat  of  the  district  and  together  with  said  other  exhibits 
as  showing  the  work  to  be  done  therein,  the  said  map  showing  with  reasonable 
certainty  the  location  of  the  proposed  ditches  and  drains.  And  we  hereby  declare 
it  our  belief,  founded  upon  such  personal  examination  and  the  care  taken  in  the 
discharge  of  our  duties  in  that  regard,  that  the  construction  and  making  of  the 
several  ditches  and  drains  as  specified  and  provided,  when  completed,  will  be  of 
immense  benefit  to  the  lands  of  said  district,  and  practically  reclaim  them,  and 
make  them  capable  of  cultivation  and  production  of  good  crops,  and  though  the 
cost  of  the  proposed  work  will  be  great,  and  larger  than  perhaps  at  first  thought, 
we  are  satisfied  when  done,  the  benefits  to  the  lands  from  said  work  of  improvement 
will  greatly  exceed  the  cost,  and  that  the  said  lands  will  increase  in  value  from 
the  improvement  over  one  hundred  per  cent. 
Princeton,  Ilia.,  Jan.  30th,  1900. 

(signed)     W.  P.  Bakeb, 
(signed)     Otto  Gingbich, 
(signed)     Scott  Bus  well, 
Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage 
District   in    Bureau   and   Henry   Counties    and    State    of    Illinois. 


Appendix.  759 

Specifications  for  Mineral  Marsh  Special  Drainage  District. 

SPECIFICATIONS. 

The  work  to  be  prosecuted  under  these  specifications  is  situated  in  the  Townships 
of  Gold  and  Mineral  in  Bureau  County  and  Alba  and  Annawan  in  Henry  County — 
all  in  the  State  of  Illinois. 

The  Drainage  System  consists  of  certain  large  ditches  to  be  constructed  by 
dredge-boat  work,  also  a  number  of  tile  drains,  all  of  which  ditches  and  tile  drains 
are  specifically  and  technically  described  hereinafter.  A  plat  of  the  above  Drainage 
District  accompanies  these  specifications,  also  profiles  and  cross-sectional  views,  all 
of  which  are  hereby  referred  to  and  made  a  part  of  these  specifications.  The  Plat 
shows  the  boundaries  of  the  District;  the  location  and  bearings  of  the  various 
ditches  and  drains,  property  owners,  etc.,  etc.,  while  the  profiles  give  the  surface 
elevation  and  depth  of  the  same.  The  Cross-section  Sheet  gives  their  various  cross- 
sectional  dimensions.  All  elevations  and  grades  are  computed  from  one  datum  or 
base  of  elevation.  All  station  stakes  are  set  100  feet  apart  and  stakes  are  num- 
bered in  regular  order,  Station  0  being  at  whichever  end  of  the  ditch  the  survey 
commenced. 

The  bearings  of  the  various  ditches  are  determined  from  the  Magnetic  Needle, 
the  declination  of  which  was  assumed  to  be  4°   35'. 

MAIN    DITCH. 

The  Main  Ditch  commences  (at  its  upper  end)  in  Section  34,  Town  17,  N.  Range  6, 
E.  of  4th  P.  M.,  500  feet  south  of  the  north-west  corner  of  the  south-east  quarter 
of  the  north-west  quarter  thereof;  thence  running  S.  77°  35'  W.  9575  feet  to  the  half- 
section  line  in  Section  32  above  Town  and  Range;  thence  S.  88°  25'  W.  1760  feet; 
thence  N.  74°  45'  W.  4265  feet;  thence  S.  89°  15'  W.  3676  feet;  thence  N.  67°  3<Y 
W.  6224  feet;  thence  N.  64°  15'  W.  5000  feet;  thence  N.  67°  20'  W.  1300  feet  to  the 
center  of  Section  27,  Town  17  N.  Range  5  East  of  the  4th  P.  M. ;  thence  West  along 
the  South  side  of  the  half-section  line  3700  feet;  thence  N.  36°  15'  W.  2146  feet; 
thence  N.  77°  W.  407  feet;  thence  S.  71°  30'  W.  427  feet;  thence  S.  55°  58'  W.  255 
feet;  thence  S.  22°  15'  W.  592  feet;  thence  S.  15°  15'  W.  587  feet;  thence  S.  49°  15' 
W.  266  feet;  thence  S.  74°  40'  W.  376  feet;  thence  S.  86°  35'  W.  995  feet;  thence 
S.  80°  30'  W.  1413  feet;  thence  N.  75°  30'  W.  413  feet;  thence  N.  37°  30'  W.  441 
feet;  thence  N.  85°  30'  W.  459  feet;  thence  N.  11°  45'  W.  787  feet;  thence  S.  72° 
W.  900  feet;  thence  N.  55°  W.  500  feet;  thence  N.  11°  15'  W.  578  feet;  thence 
N.  84°  25'  W.  722  feet;  thence  N.  62°  45'  W.  700  feet  to  the  highway  on  the 
west  line  of  Section  29,  Town  17  North,  Range  5,  East  of  the  4th  P.  M.,  in  Henry 
County.    The  ditch  to  be  cut  on  the  north  side  of  the  above  described  line. 

It  is  intended  in  the  above  ditch  known  as  the  Main  Ditch  to  follow  the  old 
channel  of  the  present  ditch  in  a  general  way,  only  deviating  therefrom  so  far 
as  may  seem  advisable  in  cutting  off  certain  objectionable  angles  and  corners. 

The  above  ditch  (Main)  is  to  be  10  feet  bottom  width  and  26  feet  top  width 
from  Station  0  at  upper  end  to  the  junction  of  the  South  Ditch,  near  the  center 
of  Section  32,  Gold  Township,  from  here  to  the  junction  of  the  Elm  Island  Ditch 
in  Section  26,  Alba  Township,  top  width  45  feet,  bottom  35  feet,  from  said  junction 
at  Elm  Island  Ditch  to  junction  of  North  Ditch  in  center  of  Section  27,  Alba 
Township,  said  ditch  to  be  50  feet  top  width,  40  feet  bottom;  from  the  center  of 
said  Section  27  on  west  to  the  outlet  at  the  west  side  of  Section  29,  Alba  Township, 
the  above  ditch  is  to  be  55  feet  top  and  40  feet  bottom  width.  The  depth  to  be  as 
shown  on  the  profile  of  said  Main  Ditch,  which  is  about  9}&   feet  average.     The 


7C0  Water  and  Mineral  Cases. 

total  length  of  the  ditch  as  staked  out  is  48,700  feet.  So  far  as  is  practical  and 
advisable  the  south  bank  of  the  old  ditch  to  remain  intact  and  the  extra  width  cut 
from   the   north   bank. 

[Description  of  the  remaining  ditches  follows.] 

TTLB    DRAINS. 

The  following  tile  drains  are  to  be  laid  to  furnish  outlets  to  the  more  remote 
portions   of  the  District   from   the  main   ditches,  viz. : 

A  15-inch  tile  drain  begins  at  the  Main  Ditch  where  the  same  crosses  the  section 
line  between  Sections  32  and  33  Town  17  N.,  R.  6  E.,  thence  running  north  on  the 
east  side  of  the  section  line  1200  feet,  thence  N.  44°  E.  2450  feet. 

[Description   of  the   remaining   title   drains  follows.] 

The  above  tile  drains  to  be  known  as  Tile  Drains  A,  B,  C,  and  D,  respectively, 
and  are  so  designated  on  the  plat. 

The  tile  are  to  be  laid  by  experienced  men  and  in  a  good  and  workmanlike 
manner.  The  depth  is  given  on  the  profile.  The  grade  as  given  by  the  Engineer 
in  charge  is  to  be  carefully  maintained  throughout  all  tile  lines  by  means  of  over- 
head cross  sights.  The  grade  and  alignment  are  to  be  kept  uniform  and  in  accord- 
ance with  the  plans  and  directions  of  the  Engineer  of  the  Drainage  District. 

The  tile  is  to  be  first-class  drain  tile,  free  from  all  serious  defects  and  not  less 
than  2-foot  lengths.  All  tile  trenches  are  to  be  back  filled  to  the  general  surface 
of  the  ground. 

GENERAL  REMARKS. 

In  the  construction  of  the  Dredge  Boat  Ditches,  a  berm  of  4  feet  is  to  be  left 
on  both  sides  the  ditch  in  all  cases.  The  excavated  material  is  to  be  cast  about 
equally  on  each  side  of  the  ditches  unless  otherwise  arranged  and  agreed  upon 
by  the  Commissioners  and  Contractor  interested;  the  ditches  are  to  be  cut  to  the 
dimensions  as  given  in  the  profiles  and  cross-sectional  plans  of  the  same  and  the 
grade  line  maintained  as  nearly  as  is  practical  in  dredge  boat  work.  The  slopes 
of  the  banks  also  to  be  constructed  as  therein  shown  as  nearly  as  is  practical  in 
experienced  dredge  boat  work.  No  work  to  be  accepted  until  inspected  by  the 
Commissioners  and  Engineer  of  the  District. 

ESTIMATES. 

Monthly  estimates  will  be  made  upon  the  work  completed  and  accepted  by  the 
Engineer  in  charge,  the  District  retaining  10  per  cent,  of  each  estimate  as  a  guaranty 
of  the  final  completion  of  the  entire  work.  The  same  to  apply  to  either  dredge 
boat  or  tile  work. 

Should  there  arise  any  question  or  difference  of  opinion  as  to  the  interpretation 
of  these  specifications  the  matter  in  question  is  to  be  referred  to  the  Engineer  of 
the  Drainage  District  whose  decision  shall  be  final  and  conclusive. 

ESTIMATE    OF    QUANTITIES. 

Main  Ditch,  exclusive  of  old  ditch  525146  cubic  yards. 

Kink  Creek  Ditch  10666  "  " 

Coal  Creek  Ditch 47200  "  " 

Elm  Island  Ditch   61155  "  " 


Appendix.  761 

North  Ditch 151610  cubic  yards. 

South  Ditch,  0  to  27 24600  " 

South  Ditch,  27  to  96  58675  " 

Goose  Pond  Ditch   18774  " 

Total    897826    cubic  yards. 

A.  H.  Bell,  Civil  Engineer  and  Surveyor. 

W.  P.  Bakeb, 
Otto   Gingrich, 
Scott  Bus  well. 

Commissioners  of  the  Mineral  Marsh  Special  Drainage  District 
in    Bureau     and    Henry    Counties    and    State    of      Illinois. 
January  30th,  1900. 

Amendment  to  specifications  in  The  Mineral  Marsh  Special  Drainage  District  in 
Bureau  and  Henry  Counties  and  State  of  Illinois. 

EMBANKMENTS. 

In  the  construction  of  the  ditches  of  the  District  openings  shall  be  left  in  the 
embankments  for  the  inflow  of  surface  waters  wherever  in  the  judgment  of  the 
Commissioners  and  the  Engineer  in  charge  such  openings  shall  appear  to  be  reason- 
ably  required   for   said   purpose. 

A.  H.  Bell,  Civil  Engineer  and  Surveyor. 

W.  P.  Bakeb, 
Otto  Gingrich, 
June  18th,  1900.  Scott  Buswell. 

Commissioners  of  the  Mineral  Marsh  Special  Drainage  District 
in    Bureau     and    Henry    Counties    and    State    of      Illinois. 

Filed  June  20th,    1900. 

Wm.  Wilson, 
County  Clerk  and  ex  officio  Clerk  of  said  Drainage  District. 

Affidavit  of   Nonresidence  of  Certain   Defendants. 

State  of  Illinois,       "l 

>   ss. 
Bureau  County.  J 

George  S.  Skinner,  being  first  duly  sworn  on  his  oath  says  that  he  is  the  attorney 
for  W.  P.  Baker,  Scott  Buswell  and  Otto  Gingrich,  Commissioners  of  The  Mineral 
Marsh  Special  Drainage  District  in  Bureau  and  Henry  Counties  and  State  of 
Illinois,  and  that  for  and  in  behalf  of  said  commissioners  he  on  this  23d  day  of 
May,  A.  D.  1900,  filed  with  the  clerk  of  the  county  court  of  Bureau  County,  Illinois, 
the  petition  or  request  of  said  commissioners  for  a  venire  for  a  jury  to  assess 
damages  for  right  of  way  in  the  matter  of  said  drainage  district,  and  that  among 
others  who  are  made  parties  to  said  proceeding  the  following  named  persons  are 
nonresidents  of  the  State  of  Illinois,  and  that  the  residence  and  post  office  addresses 
of  the  said  nonresident  parties,  as  ascertained  by  this  affiant  in  the  exercise  of 
diligence  and  due  inquiry,  are  as  set  forth  hereinbelow,  the  residence  and  post  office 
address  of  each  being  set  opposite  his  or  her  name  respectively,  as  follows,  to  wit: 
Emmi  Talle  Hunter  Marysville,  Kentucky. 

[Here  list   names.] 


762  Water  and  Mineral  Cases. 

And  that  on  diligent  inquiry  the  address  of  Fred  W.  Gallander  could  not  be 
ascertained  and  is  now  unknown  to  affiant,  and  affiant  says  that  this  affidavit  is 
made  for  the  purpose  of  causing  due  and  proper  notice  to  be  given  the  said  non- 
resident parties,  and  the  said  Fred  W.  Gallander. 

(signed)     George  S.  Skinneb. 
Subscribed  and  sworn  to  before  me  this  23d  day  of  May,  A.  D.  1900. 

(signed)     J.  L.  Spaulding, 
(Seal)  Notary  Public. 


Order  Fixing  Time  of  Hearing  on   Petition  for  Venire,  etc. 

State  of  Illinois, 
Bureau  County. 


"    } 


In  the  County  Court,  May  Probate  Term,  A.  D.  1900. 
In  the  matter  of  the  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry 
Counties  and  State  of  Illinois. 

On  application  or  request  for  venire. 

And  now  on  this  day  come  Wl  P.  Baker,  Scott  Buswell  and  Otto  Gingrich,  Com- 
missioners of  The  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry 
Counties  and  State  of  Illinois,  by  Geo.  S.  Skinner,  their  attorney,  and  file  with 
the  clerk  of  this  court  their  petition  and  request  for  a  venire  for  a  jury  to 
assess  damages  to  E.  W.  Lawton,  J.  M.  Curtis  and  others  in  the  above  entitled 
matter  or  proceeding  now  pending  in  this  court,  for  certain  rights  of  way  required 
for  ditches  to  be  made  in  said  district  over  on  and  across  the  lands  therein  owned 
and  held  by  the  several  persons  and  parties  therein  set  out,  in  accordance  with  the 
provisions  of  section  fifty-seven  (57)  of  an  Act,  entitled  "An  Act  to  provide  for 
drainage  for  agricultural  and  sanitary  purposes,  and  to  repeal  certain  acts  therein 
named,"  approved  June  27th,  1885,  in  force  July  1st,  1885,  and  all  acts  amendatory 
thereof,  which  petition  is  in  words  and  figures  as  follows,  to  wit:  [Here  Clerk 
record  petition],  and  the  court  having  now  examined  into  the  subject-matter  set 
forth  in  said  petition  and  request,  doth  find  that  it  is  the  duty  of  the  court  under 
the  representations  made  and  contained  in  said  petition  and  the  direction  con- 
tained in  said  act  to  fix  the  time  for  the  hearing  on  said  petition,  and  the  court 
further  finds  that  said  petition  contains  a  general  description  of  the  lands  and 
premises  over  or  through  which  the  rights  of  way  is  sought,  and  the  name  of  the 
owner  or  owners  thereof,  the  general  course  and  direction  of  the  rights  of  way 
sought  and  the  amount  of  land  required  or  proposed  to  be  taken  and  occupied  by  the 
same. 

It  is  therefore  ordered  by  the  court  that  Monday,  June  18th,  A.  D.  1900,  at 
the  hour  of  1:30  p.  m.  of  said  day,  be  and  the  same  is  hereby  fixed  as  and  for 
the  time  of  the  hearing  on  said  petition,  and  the  courthouse  in  the  City  of 
Princeton,  Bureau  County,  Illinois,  as  the  place  where  said  hearing  shall  take 
place,  and  the  clerk  of  this  court  is  hereby  directed  to  issue  a  venire  for  a  jury 
of  twelve  disinterested  land  owners  to  appear  at  said  time  and  place,  and  also 
to  give  notice  by  publication  and  also  by  causing  notice  to  be  served  upon  the 
owner  or  owners  of  the  lands  over  which  the  rights  of  way  is  sought,  as  provided 
by  the  statute  in  such  cases  made  and  provided. 

(signed)     Richabd  M.  Skxnneb, 
County  Judge  and  Judge  of  the  County  Court, 


Appendix. 


763 


Assessment  Roll  or  Classification  Table. 

CLASSIFICATION. 

The  undersigned,  Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage 
District  in  Bureau  and  Henry  Counties  and  State  of  Illinois,  having,  immediately 
after  their  election  and  qualification  as  such  commissioners,  gone  upon  the  lands  in 
said  drainage  district  and  determined  upon  a  system  of  drainage  for  said  district, 
with  the  assistance  of  A.  H.  Bell,  a  competent  civil  engineer  by  us  employed  to  locate 
and  advise  upon  the  character  of  the  work  to  be  done,  which  said  system  among 
other  things  provides  main  outlets  of  ample  capacity  for  the  waters  of  said  district, 
having  in  view  the  future  contingencies  as  well  as  the  present,  which  said  system 
of  drainage  so  determined  upon  in  form  of  our  written  report  together  with  the  maps, 
exhibits  and  papers  pertaining  thereto,  were  duly  filed  in  the  office  of  the  County 
Clerk  of  Bureau  County,  who  is  ex  officio  clerk  of  said  drainage  district,  and 
having  thereupon  and  without  delay  and  as  soon  as  practicable  thereafter  gone 
upon  and  personally  examined  all  the  lands  in  said  district,  together  with  the 
highways  therein,  for  the  purpose  of  making  a  special  assessment  for  benefits 
to  said  lands  by  classifying  said  lands,  we  did,  in  pursuance  of  law  proceed  and 
classify  said  lands  in  said  drainage  district  in  tracts  of  forty  acres,  more  or  less, 
according  to  the  legal  or  recognized  subdivisions  on  a  graduated  scale  numbered 
according  to  the  benefits  to  be  received  by  the  contemplated  drainage  thereof. 

The  tracts  of  land  which  will  receive  most  and  about  equal  benefits  are  marked 
one  hundred  (100)  and  such  as  were  by  us  adjudged  to  receive  a  less  amount  of 
benefits  were  marked  with  a  less  number  denoting  its  per  cent,  of  benefits,  which 
said  classification  so  made  we  have  caused  to  be  properly  tabulated  as  hereinafter 
set  out,  and  we  hereby  authorize  the  same  to  be  placed  on  file  for  reference  and 
inspection  and  which,  when  confirmed,  shall  remain  as  a  basis  for  such  levy  of  taxes 
or  assessments  as  may  be  needed  for  the  lawful  purposes  of  said  drainage  district, 
which  said  classification  and  the  said  tabulation  thereof  is  hereby  submitted  as 
and  for  our  classification  of  said  lands,  and  is  in  the  words  and  figures  following, 
to  wit: 


Owners'  Names 


Description   of  Lands. 


Subdivisions 


a 


Ph 


§3 


a 

o 

-»-> 

d 

to 

ta 

ej 

m 

to 

rt 

a 

fj 

o 

o 

fc 

James  Giltner        NW%NEfr%     4       16       6        41.79   35.00. 

Henry  Reider. 

Robert   Reider. 

Etc. 

And  having  also  examined  the  public  highways  in  said  drainage  district  in  each 
of  the  four  towns  of  Mineral  and  Gold  in  Bureau  County  and  Annawan  and  Alba 
in  Henry  County,  in  which  townships  said  district  is  situated,  for  the  purpose  of 
determining  the  proportional  part  of  the  corporate  taxes  or  assessments  of  said 
drainage  district  to  be  borne  and  paid  by  said  towns  according  to  the  benefits  to  their 


764  Wateb  and  Mineral  Cases. 

public  highways  respectively  to  be  derived  from  and  received  by  such  drainage,  we 
do  hereby  estimate  the  benefits  to  the  entire  drainage  district,  including  the  public 
highways  therein  in  all  four  of  said  towns,  at  the  sum  of  two  hundred  thousand 
(200,000.00)  dollars;  and  we  hereby  also  estimate  the  benefits  to  the  public  high- 
ways in  the  said  town  of  Mineral,  in  said  district,  by  the  construction  of  the  pro- 
posed ditches  and  work  in  said  drainage  district,  at  the  sum  of  one  thousand  and 
twenty  (1020)  dollars;  and  we  do  hereby  estimate  the  benefits  to  the  public 
highways  in  the  said  town  of  Gold,  in  said  district,  by  the  construction  of  the 
proposed  ditches  and  work  in  said  drainage  district,  at  the  sum  of  one  thousand,  one 
hundred  and  twenty  (1120)  dollars;  and  we  do  hereby  estimate  the  benefits  to  the 
public  highways  in  the  said  town  of  Annawan,  in  said  district,  by  the  construction 
of  the  proposed  ditches  and  work  in  said  drainage  district  at  forty  (40.00)  dol- 
lars; and  we  do  hereby  also  estimate  the  benefits  to  the  public  highways  in  the 
said  town  of  Alba,  in  said  district,  by  the  construction  of  the  proposed  ditches  and 
work  in  said  drainage  district,  at  nine  hundred  (900)  dollars;  and  further  we 
do  hereby  set  out  and  express  the  fractional  figures  expressing  the  ratio  between 
the  ;5um  of  the  benefits  for  the  whole  district  and  the  sum  of  the  benefits  to  the 
public  highways  of  each  of  said  four  towns,  denoting  and  expressing  the  proportional 
part  of  the  corporate  taxes  to  be  paid  by  assessment  to  the  lands  in  said  district, 
and  to  the  public  highways  therein  in  each  of  the  said  four  towns,  respectively, 
as  follows,  to  wit: 

For  the  lands  in  said  drainage  district   9846 

For  the  public  highways  of  the  town  of  Mineral   0031 

For  the  public  highways  of  the  town  of  Gold 0053 

For  the  public  highways  of  (lie  town  of  Annawan 0002 

For  the  public  highways  of  the  town  of  Alba 0045 

And  having  it  in  doubt  whether  the  lands  constituting  and  embraced  within 
the  right  of  way  for  The  Illinois  and  Mississippi  Canal  which  runs  through  said 
drainage  district  are  subject  to  assessment  for  benefits  for  agricultural  and  sanitary 
purposes  by  the  proposed  system  of  drainage  within  the  purview  of  the  act  of  the 
legislature  under  which  these  proceedings  are  conducted,  and  considering  the 
impractical  result  of  any  such  assessment,  we  have  omitted  from  this  classification 
any  assessment  of  benefits  to  said  right  of  way  and  any  fractional  figures  to  denote 
the  ratio  between  the  benefits  thereto  and  the  benefits  to  the  whole  district,  and 
respectfully  defer  the  ascertaining  of  benefits  to  said  right  of  way  from  the  pro- 
posed work,  if  any,  to  be  determined  by  negotiations  between  the  officers  of  this 
drainage  district  and  the  Government  officers  having  in  charge  the  construction 
of  said  canal,  the  amount  to  be  realized  thereon,  if  any,  to  be  adjusted  between 
the  drainage  district  and  the  said  towns  upon  the  basis  of  the  fractional  figures 
expressing  the  ratio  of  benefits  above  set  out,  as  proximate  and  equitable,  said  canal 
right  of  way  having  been  considered  in  above  classification  of  the  lands  through 
which  it  runs. 

In  witness  whereof  we,  the  said  commissioners,  have  hereunto  set  our  hands  this 
11th  day  of  June,  A.  D.  1900. 

(signed)     W.  P.  Baker, 
(signed)     Scott  Buswell, 
(signed)     Otto  Gingrich. 
Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage 
District  in  Bureau  and  Henry  Counties  and   State  of  Illinois. 


} 


Appendix.  765 

Order  of  Commissioners  Fixing  Time  of  Hearing  on  Classification- 

State  of  Illinois, 
Bureau  County. 

In  the  matter  of  the  Classification  of  lands  in  The  Mineral  Marsh  Special  Drainage 
District  in  Bureau  and  Henry  Counties  and  State  of  Illinois. 
We,  the  undersigned,  Drainage  Commissioners  of  The  Mineral  Marsh  Special 
Drainage  District  in  Bureau  and  Henry  Counties  and  State  of  Illinois,  having 
this  day  filed  our  classification  of  the  lands  in  said  district  in  the  office  of  the 
County  Clerk  of  Bureau  County,  State  of  Illinois,  which  clerk  is  ex  officio  clerk 
of  said  Drainage  District,  it  is  hereby  ordered  that  the  time  and  place  for  the 
hearings  of  objections  to  said  classification,  be  and  the  same  is  hereby  fixed  for 
Monday,  July  9th,  A.  D.  1900,  at  the  hour  of  1:30  o'clock  p.  m.  of  said  day,  at 
the  Court  House  in  the  City  of  Princeton  in  said  Bureau  County  and  said  clerk 
is  hereby  directed  to  give  notice  thereof  as  required  by  law  and  the  statute  in 
such  cases  made  and  provided.  All  persons  having  objections  to  said  classification 
are  requested  to  have  their  objections  in  writing  filed  with  said  clerk  by  the  time 
of  hearing  fixed  as  hereinabove  stated. 

(signed)      W.  P.  Bakeb, 
(signed)     Otto  Gingrich, 
( signed )      Scott    Buswell. 
Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage  District  in  Bureau 
and   Henry    Counties   and    State   of   Illinois. 


Motion    for    Continuance. 


State  of  Illinois 
Bureau  Co 


linois,       ^ 
unty.  J 


In  the  County  Court  of  Bureau  County,  June  Term,  A.  D.  1900. 
Scott  Buswell, 
W.  P.  Baker, 
Otto  Gingrich, 
Drainage  Commissioners  Mineral  Marsh  Drainage  District. 

vs. 
J.  A.  Scnofield  and  others. 

CONDEMNATION. 

John  A.  Schofield,  being  duly  sworn,  on  oath  says  he  is  one  of  the  defendants 
in  the  above  entitled  cause  and  that  he  cannot  safely  and  with  justice  to  him- 
self proceed  to  the  trial  of  the  above  cause  at  this  time  for  want  of  testimony 
material,  proper,  and  competent  and  proper  in  said  action  and  this  deponent  further 
saith  that  he  is  a  nonresident  of  said  county  and  proper  written  notice  of  the 
appointment  of  said  Commissioners  and  all  proceedings  in  said  cause  up  to  the 
present  time,  if  properly  mailed  to  him  failed  to  reach  him.  Deponent  hopes  and 
expects  to  be  able  to  proceed  in  the  above  cause  in  ten  days  and  prays  a  continuance 
for  that  space  of  time,  and  that  this  application  is  not  made  for  the  purpose  of 
delay  but  that  justice  may  be  done. 

(signed)     John  A.  Schofield. 
Subscribed  and  sworn  to  before  me  this  18th  day  of  June,  A.  D.  1900. 

(signed)     Wm.  Wtlson, 
Co.  Clk. 


766  Water  and  Mineral  Cases. 

Notice  to    Nonresidents  of  Special  Drainage  Proceedings  for  Right  of  Way. 

To  Emmi  Talle  Hunter;  Benjamin  F.  Thomas;  Bessie  B.  Jones;  George  B. 
Jones;  Susan  Harrison;  Theodore  L.  Harrison;  The  Philadelphia  Trust  Safe  Deposit 
and  Insurance  Company;  Susan  Harrison,  Theodore  L.  Harrison,  and  The  Phila- 
delphia Trust  Safe  Deposit  and  Insurance  Company,  trustees  under  the  last  will 
and  testament  of  Joseph  Harrison,  Jr.,  deceased;  T.  Foohey;  S.  F.  Gilman;  and 
Fred  W.  Gallander. 

You  and  each  of  you  are  hereby  notified  that  a  jury  has  been  called  to  meet 
before  the  county  judge  of  the  county  court  of  the  County  of  Bureau,  in  the  State 
of  Illinois,  at  the  Court  House  in  the  City  of  Princeton,  in  said  County  on  Monday, 
the  18th  day  of  June,  A.  D.  1900,  at  1:30  o'clock  P.  M.  for  the  purpose  of  assessing 
damages  for  right  of  way  in  the  matter  of  The  Mineral  Marsh  Special  Drainage 
District  in  Bureau  and  Henry  Counties  and  State  of  Illinois,  when  and  where  you 
can  appear  and  assert  your  rights,  if  you  desire. 

(signed)     Wm.  Wilson, 
Clerk  of  the  County  Court  of  Bureau  County,  Illinois. 


Appearance. 

State  of  Illinois, 
Bureau  County. 


} 


In  the  County  Court,  June  Term,  1900. 
In  re  Petition  of  Mineral  Marsh  Special  Drainage  District,  etc.,  to  condemn  right 
of  way. 
I  do  hereby,  with  consent  of  all  parties  had  and  by  permission  of  court,  enter 
appearance  of  Hannah  Mumford,  Katie  Kane,  and  Katie  McCabe,  and  also  with 
consent  of  counsel  for  J.  A.  Schofield. 

(signed)     S.  W.  Odell,  Atty. 


Verdict  of  Condemnation  Jury. 

State  of  Illinois, 
Bureau  County. 

In  the  County  Court,  June  Term,  A.  D.  1900. 


>    ss. 


W.  P.  Baker,  Scott  Buswell,  etc., 

vs. 
Emmi  Talle  Hunter;  Benjamin  F.  Thomas,  etc. 

Petition  to  assess  just  compensation  for  damages  for  rights  of  way  for  ditches,  etc. 

We,  the  undersigned  jurors  impaneled  in  the  above  entitled  cause  to  assess 
the  just  compensation  for  the  lands  sought  to  be  taken  by  the  said 
petitioners  for  the  rights  of  way  for  the  ditches  to  be  constructed  by  them  in 
said  drainage  district,  and  for  lands  damaged  thereby,  do  hereby  find  and  report 
to  the  court  that  said  Emmi  Talle  Hunter,  Benjamin  F.  Thomas,  Bessie  B.  Jones 
and  George  B.  Thomas,  are  entitled  as  just  compensation  for  their  lands  described 
in  the  petition  herein  and  sought  to  be  taken  by  said  petitioners  for  the  con- 
struction of  such  ditches,  to  the  sum  of  Five  Hundred  and  Seventy-Eight  and  55-100 
dollars,  and  for  damages  to  their  other  lands  not  taken,  Fifteen  Dollars,  etc. 


Appendix.  767 

Judgment  in  Condemnation. 


State  of  Illinois,      "| 
Bureau  County.  J 

In  the  County  Court,  June  Term,  A.  D.  1900. 

W.  P.  Baker,  Scott  Buswell,  and  Otto  Gingrich,  Drainage  Commissioners  of 
The  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry  Counties 
and  State  of  Illinois, 

vs. 

Emmi  Talle  Hunter;  Benjamin  F.  Thomas,  etc. 

Petition  to  assess  damages  for  right  of  way,  etc. 

Now  come  the  said  petitioners,  the  said  Drainage  Commissioners  of  The  Mineral 
Marsh    Special    Drainage   District   in   Bureau   and   Henry    Counties    and    State   of 
Illinois  by  Geo.  S.  Skinner  and  Jay  L.  Spaulding,  their  attorneys,  and  also  come 
the  defendants  Sarah  Harrison,  Theodore  L.  Harrison  and  The  Philadelphia  Trust 
Safe  Deposit  and  Insurance  Company,  trustees,  Hugh  White,  Katie  Kane,  Katie  Mc- 
Cabe   and   Hannah   Mumford,   by   S.   W.   Odell,   their   attorney,   and   the   defendant 
J.  A.  Schofield,  by  J.  F.  Bosworth  and  S.  W.  Odell,  his  attorneys,  and  the  defend- 
ants Emmi  Talle  Hunter,   Benjamin   F.   Thomas,   Bessie  B.  Jones   and  George  B. 
Thomas,  S.  F.  Gilman  and  John  McNeill  not  appearing  either  in  person  or  by  any 
one  for  them  as  their  attorney,  and  the  said  petitioners  as  such   drainage  com- 
missioners having  on  the  22d  day  of  May,  A.  D.  1900,  filed  with  the  clerk  of  this 
court   their   petition    or   request   for   a   jury   to   assess   the    just   compensation    for 
the  lands  sought  to  be  taken  by  said  petitioners  as  such  commissioners  for  the 
right   of  way   for  certain   ditches   to   be   constructed   by   them   in   the   said   special 
drainage  district  and   for  lands   damaged  thereby,   and   due   and   proper   service  of 
notice  of  this  proceeding  having  been  had  upon  the  said  defendans  J.  A.  Schofield, 
Hannah  Mumford,  Katie  Kane,  Katie  McCabe,  Hugh  White  and  John  McNeill  by 
personal  service  of  due  and  proper  notice  of  the  pendency  of  this  proceeding  upon 
each  of  them  more  than  five  days  before  the  18th  day  of  June,  A.  D.   1900,  the 
time  heretofore  on  the  filing  of  said  petition  or  request  fixed  by  the  order  of  the 
court  for  the  hearing  on  said  petition,  the  said  notices  having  been  issued  by  the 
clerk  of  this  court  under  the  seal  thereof  and  informing  the  persons  to  whom  the 
same  was  addressed  of  the  time  and  place  when  this  case  would  be  heard,  and 
which  notices  were  thus  issued  in  the  name  of  The  People  of  the  State  of  Illinois, 
and  were  served  upon  the  said   defendants,   Hannah  Mumford,  Katie  Kane,   Katie 
McCabe   and   Hugh   White   by   reading   the   same   to   them   and   at   the   same   time 
delivering  to  him  a  true  copy  thereof  on  May  30th,  1900,  and  upon  the  said  John 
McNeill  by  A.  K.  Haberer,  Sheriff  of  Whiteside  County,  Illinois,  by  the  delivery  to 
him  of  a  true  copy  of  said  notice  on  June  8th,   1900,  and  it  appearing  from  the 
affidavit  of  George  S.   Skinner,  filed  on  said  May  23d,   1900,  soon  after  the  filing 
of  the  said  petition,  that  the  defendants  Emmi  Talle  Hunter,  Benjamin  F.  Thomas, 
Bessie  B.  Jones,  George  B.  Thomas,  Sarah  Harrison,  Theodore  L.  Harrison  and  The 
Philadelphia   Trust   Safe   Deposit   and    Insurance   Company,    T.    Foohey   and   S.    F. 
Gilman  are  nonresidents  of  the  State  of  Illinois,  and  stating  their  residences  and 
post  office   addresses   respectively,   and  they,   and  each  of  said   nonresident   defend- 
ants  having  been   duly  and   properly  notified   of   the   pendency   of  this   proceeding, 
as   appears   from   the   certificate   of   the    publication   of   the   like   notice,   being   the 
notice  provided  to  be  given  by  the  statute  in  such  cases,  in  the  Bureau  County 


768  Water  and  Mineral  Cases. 

Tribune,  a  weekly  newspaper  printed  and  published  in  Princeton,  Bureau  County, 
Illinois,  of  general  circulation,  for  three  successive  weeks,  once  each  week,  the 
first  insertion  of  said  notice  being  in  the  issue  of  May  25th,  1900,  and  the  last 
in  the  issue  of  June  8th,  1900,  as  appears  from  the  certificate  thereof  of  E.  K. 
Mercer,  publisher  of  said  paper,  on  file  in  this  proceeding,  and  the  certificate  of 
Win.  Wilson,  clerk  of  the  county  court  of  Bureau  County,  Illinois,  of  date  May 
30th,  1900,  showing  the  mailing  of  a  copy  of  such  published  notice  to  each  of  said 
nonresident  defendants  on  said  May  30th,  1900,  at  the  respective  post  office  addresses 
given  and  stated  in  said  affidavit  in  an  envelope  addressed  to  each  at  said  address, 
sealed  and  postage  prepaid,  the  said  notices  to  the  said  nonresident  defendants 
having  thus  been  given  by  said  clerk  more  than  two  weeks  prior  to  the  time  of 
hearing  fixed  by  the  court  on  said  petition  and  by  its  order  as  aforesaid,  and  on 
said  time  and  at  said  place,  to-wit,  June  18th,  1900,  at  1:30  o'clock  P.  M.  of  said 
day  in  the  County  Court  rooms  in  the  Court  House  in  the  City  of  Princeton  in 
Bureau  County  in  the  State  of  Illinois,  this  cause  coming  on  to  be  heard  upon 
the  said  petition  and  pursuant  to  the  giving  of  notice  as  aforesaid,  and  the 
parties  appearing  as  aforesaid,  and  the  defendants  aforesaid,  Emmi  Talle  Hunter, 
Benjamin  F.  Thomas,  Bessie  B.  Jones,  George  B.  Thomas,  S.  F.  Gilman,  and  John 
McNeill  having  failed  to  appear  either  in  person  or  by  attorney,  on  motion  of 
petitioners  they  were  each  three  times  solemnly  called  in  open  court  to  plead, 
answer  or  respond  to  said  petition,  and  each  failing  to  plead,  answer,  or  respond, 
they  and  each  of  them  defaulted  by  order  of  the  court  and  the  said  petition  taken 
as  and  for  confessed  by  each  of  them,  and  the  matters  in  controversy  having  been 
settled  as  to  E,  W.  Lawton,  J.  M.  Curtis  and  Fred  W.  Gallander,  on  motion  of 
petitioners  by  order  of  court  the  said  petition  was  dismissed  as  to  said  defendants 
E.  W.  Lawton,  J.  M.  Curtis  and  Fred  W.  Gallander,  and  thereupon  this  cause 
proceeding  to  a  hearing,  on  said  18th  day  of  June,  A.  D.  1900,  pursuant  to  the 
prayer  of  the  petition  or  request  in  this  proceeding  and  by  order  of  the  court 
heretofore  entered  in  this  behalf,  a  jury  is  impaneled  in  this  cause  to  ascertain 
the  just  compensation  and  amount  to  be  paid  to  the  said  Emmi  Talle  Hunter, 
Benjamin  F.  Thomas,  Bessie  B.  Jones  and  George  B.  Thomas,  and  the  just  com- 
pensation and  amount  to  be  paid  to  the  said  Sarah  Harrison,  Theodore  L.  Harrison 
and  The  Philadelphia  Trust  Safe  Deposit  and  Insurance  Company,  trustees,  and  the 
just  compensation  and  amount  to  be  paid  to  the  said  J.  A.  Schofield,  and  the  just 
compensation  and  amount  to  be  paid  to  T.  Foohey,  and  the  just  compensation  and 
amount  to  be  paid  to  the  said  S.  F.  Gilman,  and  the  just  compensation  and  amount 
to  be  paid  to  the  said  Hannah  Mumford,  and  the  just  compensation  and  amount 
to  be  paid  to  the  said  Katie  Kane,  and  the  just  compensation  and  amount  to  be 
paid  to  the  said  Katie  McCabe,  and  the  just  compensation  and  amount  to  be  paid 
to  the  said  Hugh  White,  and  the  just  compensation  and  amount  to  be  paid  to  the 
said  John  McNeill,  for  the  lands  to  be  taken  and  damaged  in  the  taking  of  the 
strips  or  tracts  for  right  of  way  for  the  ditches  to  be  constructed  over,  in  and 
through  the  lands  held  and  owned  by  them  in  said  drainage  district,  the  description 
of  the  said  lands,  and  the  descriptions  of  the  several  portions  of  the  right  of 
way  sought  and  required  through  the  same  being  here  set  out  in  full  as  follows, 
to  wit: 

[Here  insert  description  of  lands.] 

And  upon  the  conclusion  of  the  production  and  hearing  of  the  evidence  in  the 
case,  on  motion  of  the  petitioners,  leave  is  granted  to  amend  the  petition  to  conform 
to  the  proofs  in  the  case,  and  it  is  ordered  that  the  said  petition  be,  and  the  same 
is   hereby  amended   to   conform  to  the   descriptions   hereinabove   contained   of  the 


Appendix.  769 

lands  and  premises  and  of  the  several  and  respective  tracts  required  for  right  of 
way  or  portions  thereof. 

And  the  said  jury  consisting  of  twelve  qualified  landowners  heing  first  duly 
sworn  in  the  manner  and  as  required  by  law,  after  hearing  the  evidence,  and 
inspecting  the  premises,  and  hearing  the  instructions  of  the  court,  on  this  26th 
day  of  June,  A.  D.  1900,  return  into  court  their  verdicts  as  follows:  [Here  the  clerk 
will  set  out  the  verdicts].  And  no  good  cause  being  shown  to  the  court  why 
judgment  should  not  be  entered  upon  said  verdict; 

It  is  therefore  adjudged  by  the  court  that  five  hundred  and  seventy-eight  and 
55-100  (578.55)  dollars  is  a  just  compensation  to  be  paid  by  said  drainage  com- 
missioners of  the  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry 
Counties  and  State  of  Illinois,  to  the  said  Emmi  Talle  Hunter,  Benjamin  F.  Thomas, 
Bessie  B.  Jones,  and  George  B.  Thomas  for  their  lands  to  be  taken  for  the  right 
of  way  for  the  ditches  to  be  constructed  as  above  described,  and  that  fifteen  (15) 
dollars  is  a  just  compensation  for  the  damages  to  their  other  lands  not  taken;  etc. 

And  it  is  further  ordered  and  adjudged  by  the  court  that  the  said  commissioners 
of  The  Mineral  Marsh  Special  Drainage  District  in  Bureau  and  Henry  Counties 
and  State  of  Illinois,  shall  on  or  before  the  first  day  of  June,  A.  D.  1900,  elect 
and  determine  whether  or  not  they  will  abide  by  the  awards  of  the  jury  and 
take  possession  of  the  said  lands  of  the  said  Emmi  Talle  Hunter,  Benjamin  F. 
Thomas,  Bessie  B.  Jones,  and  George  B.  Thomas,  and  the  said  lands  of  the  said 
Sarah  Harrison,  Theodore  L.  Harrison  and  The  Philadelphia  Trust  Safe  Deposit 
and  Insurance  Company,  trustees,  and  the  said  lands  of  the  said  J.  A.  Schofield, 
and  the  said  lands  of  the  said  T.  Foohey,  and  the  said  lands  of  the  said  S.  F. 
Gilman,  and  the  said  lands  of  the  said  Hannah  Mumford,  and  the  said  lands  of  the 
said  Katie  McCabe  and  the  said  lands  of  the  said  Katie  Kane,  and  the  said  lands 
of  the  said  Hugh  White,  and  the  said  lands  of  the  said  John  McNeill,  for  the  right 
of  way  for  said  ditches,  according  to  law,  and  if  the  said  drainage  commissioners 
of  said  district  shall  so  elect  to  abide  by  said  awards  and  take  possession  of  the 
lands  of  said  named  defendants  for  such  right  of  way,  said  commissioners  shall 
on  or  before  the  said  June  1st,  A.  D.  1902,  or  when  such  possession  shall  be  taken, 
pay  to  the  said  defendants,  Emmi  Talle  Hunter,  Benjamin  F.  Thomas,  Bessie  B. 
Jones,  and  George  B.  Thomas  and  the  said  Sarah  Harrison,  Theordore  L.  Harrison, 
and  The  Philadelphia  Trust  Safe  Deposit  and  Insurance  Company,  trustees,  and 
the  said  J.  A.  Schofield,  and  the  said  T.  Foohey,  and  the  said  S.  F.  Gilman,  and  the 
said  Hannah  Mumford,  and  the  said  Katie  McCabe,  and  the  said  Katie  Kane, 
and  the  said  Hugh  White,  and  the  said  John  McNeill,  or  their  proper  representatives 
the  amounts  of  the  said  awards  of  said  jury  respectively,  that  is  to  say,  five 
hundred  and  ninety-three  and  55-100  (593.55)  dollars  to  the  said  Emmi  Talle 
Hunter,  Benjamin  F.  Thomas,  Bessie  B.  Jones  and  George  B.  Thomas,  or  deposit 
the  same  with  the  county  treasurer  of  Bureau  County,  for  their  use  or  their  proper 
representatives,  being  the  whole  amount  of  the  said  award  to  them;  and  thirteen 
hundred  and  sixty-two  and  90-100  (1362.90)  dollars  to  the  said  Sarah  Harrison, 
Theodore  L.  Harrison  and  The  Philadelphia  Trust  Safe  Deposit  and  Insurance 
Company,  trustees,  or  deposit  the  same  with  the  county  treasurer  of  Bureau 
County  for  their  use  or  their  proper  representatives,  being  the  whole  amount  of 
the  said  award  to  them,  etc. 

It  is  further  ordered  and  adjudged  that  the  proper  costs  of  this  proceeding  be 
taxed  to  and  paid  by  the  said  drainage  district. 

(signed)     Richard  M.  Skinner, 
County  Judge  and  Judge  of  the  County  Court. 
VV.  &  M.— 49 


770  Water  and  Mineral  Cases. 

Objection   to   Classification. 

In  the  matter  of  the  Classification  of  the  Lands  of  the  Mineral  Marsh  Drainage 
District,  in  the  Counties  of  Bureau  and  Henry,   State  of   Illinois. 
To  the  Honorable  the  Commissioners  of  said  Drainage  District: 

The  undersigned  respectfully  make  objection  to  the  classifications  that  you 
have  placed  upon  their  respective  parcels  of  land,  and  allege  that  the  same  is 
unequal  and  unjust,  and  ask  that  the  same  be  corrected  in  accordance  with  the 
intent  of  the  law  and  the  condition  of  said  lands,  and  for  more  particular  reasons 
they  assign  as  follows: 

[Here  insert  particular  reasons.] 

Notice  for   Drainage   Contracts. 

Sealed  bids  for  the  construction  of  the  system  of  drainage  in  "The  Mineral  Marsh 
Special  Drainage  District  in  Bureau  and  Henry  Counties  and  State  of  Illinois," 
will  be  received  up  to  the  hour  of  12  o'clock  M.,  July  2d,  A.  D.  1900,  when  the 
bids  will  be  canvassed  and  the  contracts  let  to  the  lowest  and  best  bidder  or 
bidders,  by  the  undersigned  commissioners.  All  proposals  must  be  addressed  to 
or  left  with  William  Wilson,  County  Clerk,  Princeton,  Illinois. 

Said  Commissioners  reserve  the  right  to  reject  any  and  all  bids.  Specifications 
will  be  furnished  on  application  to  said  clerk. 

W.  P.  Bakeb, 
Otto  Gingrich, 
Scott  Busweix. 
Princeton,  Illinois,  July  12th,  1900.  Commissioners  of  said  District. 

Contract. 

This  contract  made  and  entered  into  this  3d  day  of  July,  A.  D.  1900,  by  and 
between  the  undersigned  Drainage  Commissioners  of  The  Mineral  Marsh  Special 
Drainage  District  in  Bureau  and  Henry  Counties  and  State  of  Illinois,  party  of 
the  first  part  hereto,  and  Pollard  Goff  and  Company,  a  corporation  organized  under 
the  laws  of  Illinois,  with  main  office  at  Champaign,  Illinois,  party  of  the  second  part; 
Witnesseth,  that  for  and  in  consideration  of  the  covenants  and  agreements  of  the 
party  of  the  first  part  hereinafter  mentioned  and  set  forth,  the  party  of  the  second 
part  hereby  covenants  and  agrees,  in  compliance  with  its  bid  made  on  July  2d,  1900, 
and  this  day  accepted  after  modified  by  the  said  party  of  the  first  part,  to  con- 
struct, excavate  and  complete  the  entire  system  of  open  ditches  as  located  and 
established  in  the  said  Drainage  District  at  the  date  hereof,  consisting  of  the 
Main  Ditch,  Kink  Creek  Ditch,  Coal  Creek  Ditch,  Elm  Island  Ditch,  North  Ditch, 
South  Ditch  and  Goose  Pond  Ditch,  including  also  the  outlet  to  said  Main  Ditch 
below  boundaries  of  the  district  to  the  terminus  of  said  Ditch  as  now  designated 
and  shown  on  the  plans  and  specifications  for  said  district,  the  said  ditches  to 
be  constructed  and  the  work  appertaining  thereto  to  be  done  in  accordance  with  the 
specifications,  a  copy  whereof  is  hereto  attached  and  hereby  especially  made  a  part 
of  this  contract,  except  in  all  cases  the  berm  or  space  to  be  left  between  the  edge 
of  completed  ditch  and  deposit  of  any  considerable  earth  shall  not  be  less  than  six 
(6)  feet.  The  entire  work  hereby  undertaken  to  be  completed  on  or  before  April  1st, 


Appendix.  771 

A.  D.  1902,  and  to  be  commenced  by  the  party  of  the  second  part  hereunder  before 
or  as  soon  after  the  levy  or  assessment  to  be  made  by  the  party  of  the  first  part  is 
made  to  provide  the  means  wherewith  to  pay  the  cost  of  said  work  to  them. 

And  in  consideration  therefor,  the  party  of  the  first  part  hereby  covenants  and 
agrees  to  pay  to  the  party  of  the  second  part  whatever  sum  the  work  shall  amount 
to,  to  be  computed  at  the  rate  of  seven  and  one-half  (7%)  cents  per  cubic  yard  for 
the  earth  and  material  excavated  and  removed  in  accordance  with  the  terms  and 
provisions  contained  in  the  plans  and  specifications  for  said  work,  and  this  contract 
provision  in  regard  to  berm,  such  payment  to  be  made  on  the  estimates  provided  to 
be  made  in  the  specifications,  except  the  first  payment  on  said  work  shall  be  made 
by  January  1st,  1901,  providing  if  the  moneys  for  such  purpose  or  derived  under 
the  levy  to  be  made  by  the  party  of  the  first  part  are  had  and  available  at  an  earlier 
date,  then  on  estimates  made  the  money  then  called  for  according  to  specifications 
shall  then  become  due  and  payable  to  the  party  of  the  second  part.  And  it  is 
hereby  understood  and  agreed  by  and  between  the  parties  hereto  that  in  the  event 
of  the  party  of  the  first  part  being  prevented  from  projecting  any  part  of  the 
system  of  ditches  aforesaid  by  action  of  court,  then  this  contract  shall  apply 
only  to  the  remaining  part,  at  the  above  mentioned  rate.  By  the  party  of  the 
first  part  is  meant  and  hereby  provided  to  include  their  successor  or  successors  in 
office  as  such  commissioners. 

In  witness  whereof  the  parties  hereto  have  hereunto  set  their  hands  and  affixed 
their  seals  the  day  and  year  first  above  written. 

(signed)     Pollard,  Goff  &  Co., 
By  J.  S.  Pollard,  President 
and  Timothy  Foohey,  Vice  President, 
(signed)     M.  A.  Goff. 

(signed)     W.  P.  Baker, 
(signed)     Otto  Gingrich, 
(signed)     Scott  Buswell. 
Commissioners  of  the  Mineral  Marsh  Special  Drainage  District 
in    Bureau     and    Henry    Counties    and    State    of      Illinois. 

Bond. 

Know  all  men  that  we,  Pollard,  Goff  and  Company,  a  corporation,  as  principal, 
and  J.  S.  Pollard,  Timothy  Foohey,  Fr.  Knollhoff,  Louis  Heckman,  P.  E.  Heckman 
and  M.  A.  Goff,  as  securities,  all  of  the  State  of  Illinois,  are  held  and  firmly  bound 
unto  the  Drainage  Commissioners  of  the  Mineral  Marsh  Special  Drainage  District 
in  Bureau  and  Henry  Counties  and  State  of  Illinois,  for  the  use  of  said  district, 
in  the  sum  of  fifty  thousand  (50,000)  dollars,  lawful  money  of  the  United  States 
for  the  payment  of  which  well  and  truly  to  be  made  we  bind  ourselves  our  heirs 
successors,  executors  and  administrators  firmly  by  these  presents. 

Signed  and  sealed  this  3d  day  of  July,  A.  D.  1900. 

The  condition  of  the  above  obligation  is  such  that  whereas  the  above  bounden 
Pollard,  Goff  and  Company  has  this  day  entered  into  a  contract  with  the  said 
Drainage  Commissioners  of  The  Mineral  Marsh  Special  Drainage  District  in  Bureau 
and  Henry  Counties  and  State  of  Illinois  to  do  certain  things  in  the  manner  and  on 
the  terms  therein  specified  and  provided,  to  which  contract  this  bond  is  attached; 
Now  therefore  if  the  above  bounden  Pollard,  Goff  and  Company  shall  well  and 
truly  perform  all  and  every  of  the  conditions  of  such  contract  to  be  by  them  performed, 


772 


Water  and  Mineral  Cases. 


at  the  time  and  in  the  manner  therein  specified  and  provided  and  made  certain,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and  effect. 

(signed)      Pollard,  Goff  &  Co. 
By  J.  S.  Pollard,  its  President, 
and  Timothy  Foohey,  its  Vice  President, 
(signed)     J.  S.  Pollard, 
(signed) 
(signed) 
(signed) 
(signed) 
(signed) 
(Seal) 


Timothy  Foohey, 
Fr.  Knollhoff. 
Louis  Heckman, 
P.  E.  Heck  man, 
M.  A.  Goff. 


State  of  Illinois, 
Mason   County. 


J-    69. 


I,  James  A.  McComas,  County  Judge  in  and  for  said  County,  do  hereby  certify 
Fr.  Knollhoff  is  personally  known  to  me  to  be  the  same  person  whose  name  is 
subscribed  to  the  foregoing  instrument  appeared  before  me  in  person  this  day  and 
acknowledged  that  he  signed,  sealed  and  delivered  the  said  instrument  for  the  uses 
and  purposes  therein  set  forth. 

Given  under  my  hand  and  seal  this  5th  day  of  July,  1900. 

(signed)   James  A.  McComas, 
Co.  Judge. 
Copy  of  Specifications  attached. 


INDEX  TO  FORMS 


ORGANIZATION   OF  SPECIAL   DRAINAGE   DISTRICTS. 

Affidavit   of    Nonresidence    761 

Appearance    766 

Assessment  Roll  or  Classification  Table   763 

Bond  for  Costs    745 

Certificate  of  Mailing  Notices    747 

Commissioners'   Report    750 

Commissioners'  Report    Adopting  System  of  Drainage    758 

Contract  for   Construction  of  Drain    770 

Contractor's    Bond    771 

Engineer's  Report    752 

Judgment  in   Condemnation    767 

Motion  for  Continuance 765 

Notice  for  Bids  770 

for  Election  of  Drainage  Commissioners    755 

of  Hearing  of  Petition   747 

to  Nonresidents  of  Proceedings  for  Right  of  Way   766 

Oaths  of   Preliminary  Commissioners    750 

Objections    to    Classification    770 

Order  of  Commissioners  Fixing  Time  of  Hearing  on  Classification 765 

Fixing  Date  for  Hearing  of  Commissioners'  Report   748 

Fixing  Time  of  Hearing  of  Petition  for  Venire   762 

for  Appointment  of  Drainage  Commissioners   748 

for  Final  Organization    753 

for  Temporary  Organization  of  District 748 

Petition  for  Organization  of  District   745 

Proof  of  Posting  Election  Notices 756 

Report  of  Engineer  upon  a  System  of  Drainage,  and  Estimates    756 

Specifications    for    Drainage   District    759 

Verdict    of    Condemnation    Jury    766 


(773) 


INDEX  TO   NOTES 


[Index  to  Cases  follows  this  Index.] 


Abandonment. 

Of  appropriated  water.     1:280. 

Appropriation. 

Rights   of    an    appropriator    of    water 

not   complying  with   the   statute   as 

against  one   subsequently   complying 

therewith.      1:129. 

Of   spring   sufficient   to    form    stream. 

1:415. 
Who     may    make     an     appropriation. 

1:531. 
Assessment. 

On     creation     of     irrigation     district. 

1:1.  .    .  + 

Powers  of   drainage  commissioners  to 

assess.     1:261. 

Bankruptcy. 
Of   irrigation   district.     1:1. 

Bonds. 
Of    irrigation    districts.     1:1. 

Canadian   Law. 

Marking    of    location    under    Ontario 

Statute.     1:644. 
Sufficiency   of   application  for   license. 

1:704. 
Powers  of  commissioners  as  to  licenses 
and  leases.     1 :704. 

Canals. 

On  unsurveyed  government  lands  and 
government  reservations.     1:480. 

Claims. 

Excessive    location    of    mining   claims. 
1:437. 

Commissioners. 
Powers     of     drainage     commissioners. 

1:261. 
Jurisdiction    of    water    commissioners 

and    officers    of    similar    character. 

1:339. 

Conditional  Sales. 

Miner's   lien   on    property   held  under 
contract  of.      1:91. 

Confirmation. 

Formation      of      irrigation      districts. 
1:1. 
Conspiracy. 

Overt  act  as  essential   to  conspiracy. 
1:722. 


Constitutional   Law. 

Constitutionality  of  statutes  for  for- 
mation of  irrigation  districts.    1:1. 

Constitutionality  of  statute  providing 
that  failure  to  record  lease  or  list 
property  for  taxation  shall  render 
lease  void.     1:244. 

Constitutional  power  to  establish 
drains  and  drainage  districts. 
1:459. 

Contracts. 

Construction  of  word  "proceeds." 
1:664. 

Corporations. 

Character  of  drainage  and  reclama- 
tion   districts.     1:107. 

Criminal    Law. 

Overt  act  as  essential  to  conspiracy. 
1:722. 

Crops. 

Measure  of  damages  for  injury  to 
land  or  crops  by  inundation  by  sur- 
face water  diverted  by  railroad  com- 
pany.    1:566. 

Damages. 

Measure  of  damages  for  injury  to  land 
or  crops  by  inundation  by  surface 
water  diverted  by  railroad  company. 
1:566. 

Directors. 

Of  irrigation  districts.     1:1. 

Discovery. 

Necessity  for   and  effect  of   discovery 
of     minerals     on    mining     location. 
1:293. 
Dissolution. 

Of    irrigation   district.     1:1. 

Diversion. 

Of  spring  sufficient  to  form  a  stream. 

1:415.  .    . 

Measure    of    damages    for    injury    to 

land    or    crops     by    inundation     by 

surface   water   diverted   by  railroad 

company.     1:566. 

Drainage. 
Legal  character  of  drainage  and  recla- 
mation districts.     1:107. 


'(775) 


776 


Water  and  Mineral  Cases. 


Drainage — Continued. 

Powers     of     drainage     commissioners. 

1:261. 
Notice  requisite  to  due  process  of  law. 

1:358. 
Constitutional      power      to      establish 

drains       and      drainage       districts. 

1:459. 
Inclusion    and    exclusion    of    lands    in 

districts.     1:593. 

Due    Process   of    Law. 

Notice  as  requisite  in  formation  of 
drainage  district.      1:358. 

Eminent  Domain. 
Powers    of    irrigation    districts.     1:1. 

Exhaustion. 

Effect  of  the  nonexistence  or  exhaus- 
tion of  the  mineral  on  gas  or  oil 
leases.     1:548. 

Fixtures. 

Machinery,  pumps,  etc.,  for  drilling 
gas  and  oil  wells  as  trade  fixtures 
removable  by  lessee.     1:99. 

Flowage. 

Statutory  liability  for  flooding  land  is 

absolute.     1:610. 
Measure  of  damages  to  land  and  crops. 

1:566. 

Gas. 

Right  of  lessee  to  remove  machinery 
and  pumps  for  drilling  wells.  1:99. 

Statute  providing  that  failure  to 
record  lease  or  list  property  for  tax- 
ation shall  render  lease  void.  1 :244. 

Peculiar  rules  of  construction  applied 
to  gas  and  oil  leases     1:396. 

Effect  of  the  nonexistence  or  exhaus- 
tion of  the  mineral  on  gas  or  oil 
leases.     1:548. 

Government   Lands. 

Canals  on  unsurveyed  government 
lands  and  government  reservations. 
1:480. 

Irrigation. 

Formation  and  management  of  dis- 
tricts.    1:1. 

De   facto   irrigation   districts.     1:1. 

Rights  of  an  appropriator  of  water  not 
complying  with  the  statute  as 
against  one  subsequently  complying 
therewith.      1:129. 

Joinder  of  parties  for  diversion  of 
water,  injury  to  ditch,  etc.     1:207. 

Transporting  water  appropriated  in 
dry  ravines,  gulches,  hollows  and 
natural  channels.     1:280. 


Abandonment  and  recaption  of  water. 

1:280. 
Jurisdiction    of    water    commissioners 

and    officers    of    similar    character. 

1:339. 
Spring  sufficient  to  form  a  stream,  ap- 
propriation  and   diversion.      1:415. 
Canals      on      unsurveyed     governim  nt 

lands   and   government   reservations. 

1:480. 
Who     may     make     an     appropriation. 

1:531. 
Statutory  liability  for  flooding  land  is 

absolute.      1:610. 

Labor. 

Supporting    mechanic's    lien.     1:157. 

Land. 

Measure  of  damages  for  injury  to  land 
or  crops  by  inundation  by  surface 
water  diverted  by  railroad  company. 
1:566. 

Leases. 

Right  of  lessee  to  remove  machinery 
and  pumps  for  drilling  oil  and  gas 
wells.     1:99. 

Statute  providing  that  failure  to  re- 
cord lease  or  list  property  for  taxa- 
tion renders  lease  void.      1:244. 

Peculiar  rules  of  construction  applied 
to  gas   and   oil   leases.      1:396. 

Effect  of  the  nonexistence  or  exhaus- 
tion of  the  mineral  on  gas  or  oil 
leases.     1:548. 

Power  of  mining  commissioner  of 
Canada  as  to  licenses  and  leases. 
1:671. 

License. 

Power  of  mining  commissioner  of 
Canada  as  to  licenses  and  leases. 
1:671. 

Sufficiency  of  application  for  a  license 
under   Canadian   statute.     1:704. 

Location. 

Necessity  for  and   effect  of   discovery 

of     minerals     on     mining     location. 

1:293. 
Excessive   location    of    mining    claims. 

1:437. 
Patent   to   mining   claim   relates   back 

to  date  of.     1-520. 
Must  be  marked  on  the  ground.  1:619. 

Machinery. 
Right  of  lessee  to  remove  machinery 
for  drilling  gas  and  oil  wells.  1:99. 

Marking. 

Location  must  be  marked  on  the 
ground.     1:619. 


Index  to  Notes. 


777 


Mechanics'  Liens. 

On    property    held   under    contract   of 

conditional  sale.     1:91. 
Services    for    which    mechanics'    liens 
are     allowed     on     mining     claims. 
1:157. 

Mines. 
Necessity  for  and   effect  of   discovery 

of     mineral     on     mining     location. 

1:293. 
Excessive   location   of    mining    claim. 

1:437. 
Patent   to   mining   claim   relates   back 

to    date   of    location.      1:520. 
Location    must    be    marked     on    the 

ground.     1:619. 
Power    of    mining     commissioners     of 

Canada    as    to    licenses    and    leases. 

1:671. 

Notice. 
As  requisite  to  due  process  of  law  in 
formation      of      drainage      district. 
1:358. 

Nuisance. 

Operation  of  oil  wells  as  a  nuisance. 
1:647. 

Officers. 

Of  irrigation  districts.     1:1. 

Oil. 

Right  of  lessee  to  remove  pumps  and 
machinery  for  drilling  wells.    1:99. 

Statute  providing  that  failure  to  re- 
cord lease  or  list  property  for  taxa- 
tion shall  render  lease  void.  1:244. 

Peculiar  rules  of  construction  applied 
to   gas   and  oil   leases.     1:396. 

Effect  of  the  nonexistence  or  exhaus- 
tion of  the  mineral  on  gas  or  oil 
leases.     1:548. 

Operation  of  oil  wells  as  a  nuisance. 
1:647. 

Parties. 

Joinder  in  action  for  diversion  of 
water,  injury  to  ditch,  etc.    1:207. 

Patent. 

To  mining  claim  relates  back  to  date 
of  location.     1:520. 

Petition. 

For  organization  of  irrigation  district. 
1:1. 


Proceeds. 

Meaning     of     term     "net     proceeds." 
1:664. 

Public  Lands. 
Canals     on      unsurveyed     government 
lands  and  government  reservations. 
1:480. 

Pumps. 
Right    of     lessee    to     remove    pumps. 
1:99. 

Railroads. 
Measure    of    damages    for    injury    to 
land  or  crops  by  inundation  by  sur- 
face water  diverted  by  railroad  com- 
pany.    1:566. 

Recaption. 

Of   appropriated  water.     1:280. 

Reclamation    Districts. 
See  Drainage. 

Sales. 

Miner's  lien  on  property  held  under 
contract  of  conditional  sale.     1:91. 

Springs. 

Sufficient  to  form  stream,  appropria- 
tion and  diversion.     1:415. 

Surface   Water. 

Measure  of  damages  for  injury  to  land 
or  crops  by  inundation  by  surface 
water  diverted  by  railroad  company. 
1:566. 

Taxation. 

Statute  providing  that  failure  to  re- 
cord lease  or  list  property  for  taxa- 
tion  renders   lease  void.      1:244. 


Use. 
W!ho  may  make  an  appropriation  of 
waters.     1:531. 

Water  Commissioners. 

Jurisdiction  of  water  commissioners 
and  officers  of  similar  character. 
1:339. 

Waters. 

See  Appropriation,  Diversion,  Drain- 
age,  Irrigation,  Springs,  etc. 


INDEX  TO   CASES 


rPoints  uoon  which  there  are  annotations  in  the  hody  of  the  work  are  followed 
by[the  wd^nSoteted"  in  parentheses.  A  separate  index  to  the  annotations 
precedes  this.] 


ABANDONMENT. 
Of  oil  leases,  see  Leases,  8. 

Temporary  Absence. 

Temporary  absence  from  claim  for 
the  purpose  of  purchasing  provisions  or 
supplies,  with  intention  to  return,  is  not 
an  abandonment.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

ACCOUNTING. 

Jurisdiction  of   Equity. 

Equity  will  give  an  account  for 
past  waste  even  without  an  injunction, 
if  an  action  at  law  is  inadequate.  Rupel 
et  al.  v.  Ohio  Oil  Co.  et  al.,  1:331,  — 
Ind.  — ,  95  N.  E.  225. 

ACKNOWLEDGMENT. 

Certificate. 

A  certificate  of  acknowledgment 
is  sufficient  which  begins  "State  of  Cali- 
fornia, Monterey  County— ss"  and  re- 
cites that  "before  me,  John  Ruurds, 
notary  public  in  and  for  Monterey 
County,"  etc.,  and  is  signed  by  him,  with 
the  words  "notary  public"  following. 
Duckworth  et  al.  v.  Watsonville  Water 
&  Light  Co.  et  al.,  1:140,  150  Cal.  520, 
89  Pac.  338. 

ADVERSE     POSSESSION. 

See  Prescription. 

Adverse    user    as    constituting    appro- 
priation,   see    Appropriation,    37. 

Surface    and    Mining    Rights. 

1.  Possession      for      agricultural 

purposes  only,  although  taken  and  held 
under  an  ordinary  deed  purporting  to 
transfer  complete  ownership,  is  _  not 
deemed  adverse  to  mining  rights 
previously  severed  by  reservation  in  a 
deed  in  the  same  chain  of  title.  J.  R. 
Crowe  Coal  &  Mining  Co.  v.  Atkinson  et 
al.,   1:446,  —  Kan.  — ,  116  Pac.  499. 

Question  of   Law. 

2.  The  question  of  whether  pos- 


session is  adverse  or  not  is  one  of  law. 


J.  R.  Crowe  Coal  &  Mining  Co.  v.  Atkin- 
son et  al.,  1 :446,  —  Kan.  — ,  116  Pac. 
499. 

AGRICULTURAL    LANDS. 

Right    of    patentee   to     minerals,    see 
Patents,    4,    5. 

ALASKA. 

Entry  of  coal  lands,  see  Coal  Lands. 

APEX. 

Mistaken  location  of,  see  Location,  39. 

APPEALS   AND    ERRORS. 

In  injunction  proceedings,  see  Injunc- 
tions,  11. 
Briefs   and    Arguments. 

1.  Oral      arguments      should     be 

requested  by  written  application  within 
the  time  allowed  for  filing  briefs;  other- 
wise, the  court  will  refuse  the  applica- 
tion in  its  discretion.  Rupel  et  al.  v. 
Ohio  Oil  Co.  et  al.,  1:331,  —  Ind.  — , 
95   N.   E.  225. 

2  Assignments  of  error  not  dis- 
cussed in  appellant's  brief  will  be  deemed 
to  be  waived.  Perry  v.  Acme  Oil  Com- 
pany, 1:99,  44  Ind.  App.  207,  88  N.  E. 
859. 

3  Where  an  assignment  of  error 
is  uncontroverted  by  the  appellee's  briefs 
or  arguments,  the  court  is  authorized  to 
accept  the  same  as  true.  Gladys  City 
Oil  Gas  &  Manufacturing  Co.  et  al.  v. 
Right  of  Way  Oil  Co.  et  al.,  1:499,  — 
Tex.  — ,  137  S.  W.  171. 

4.  Where  appellants  do  not  state 

any  proposition  or  cite  any  authority  in 
support  of  an  assignment  of  error,  it  is 
deemed  waived.  Rupel  et  al.  v.  Ohio 
Oil  Co.  et  al.,  1:331,  —Ind.  — ,  95  N. 
E.  225. 
Saving  Questions  for  Review. 

5  Where    the    trial    court    files 

conclusions  of  fact,  the  mere  omission  of 
further  findings  cannot  be  availed  of  on 
appeal  without  a  specific  request  for  such 


(779) 


780 


Water  and  Mineral  Cases. 


findings.  Gladys  City  Oil,  Gas  &  Manu- 
facturing Co.  et  al.  v.  Right  of  Way  Oil 
Co.  et  al.,  1:499,  —  Tex.  — ,  137  S.  W. 
171. 

6.  Objection  that  the  measure  of 
damages  for  the  conversion  of  oil  is 
excessive  in  not  allowing  for  the  cost  of 
extraction,  held  to  come  too  late  when 
presented  for  the  first  time  in  a  petition 
for  a  rehearing.  Gladys  City  Oil,  Gas  & 
Manufacturing  Co.  et  al.  v.  Right  of 
Way  Oil  Co.  et  al.,  1:499,  —  Tex.  — , 
137  S.  W.  171. 

Estoppel  to  Assert   Error. 

7.  A  party  cannot  complain  of 
the  action  of  the  trial  court  complying 
with  his  own  request.  Gladys  City  Oil, 
Gas  &  Manufacturing  Co.  ct  al.  v.  Right 
of  Way  Oil  Co.  et  al.,  1:499,  —  Tex. 
— ,  137  S.  W.  171. 

Conflicting    Evidence. 

8.  When  there  is  a  substantial 
conflict  in  the  evidence  upon  which  any 
finding  of  fact  is  based,  such  finding  will 
not  be  reversed  on  appeal.  Flynn  Group 
Min.  Co.  v.  Murphy,  1:619,  18  Idaho 
266,  109  Pac.  851,  138  Am.  St.  Rep. 
201. 

Harmless   Error. 

9.  The  allowance  of  an  amend- 
ment of  an  answer  to  a  cross-complaint, 
denying  specifically  certain  allegations, 
is,  if  erroneous,  harmless  where  the 
original  answer  admitted  the  cross-com- 
plaint only  so  far  as  it  was  not  incon- 
sistent with  the  affirmative  allegations 
of  the  answer.  Duckworth  et  al.  v. 
Watsonville  Water  &  Light  Co.  et  al., 
1:128,   158  Cal.  206,   110  Pac.   927. 

APPROPRIATION. 

See  Riparian  Rights. 
Injunction     against     interference,     see 
Injunctions,    2. 

Persons  Entitled  to  Appropriate. 

1.  If  the  party  seeks  to  claim 
water  for  irrigating  agricultural  land  by 
appropriation,  he  must  own  the  land 
sought  to  be  irrigated  or  be  an  actual 
bona  fide  settler  having  a  possessory  in- 
terest. Avery  v.  Johnson,  1:531,  59 
Wash.  332,  109  Pac.  1028.      (Annotated) 

2.  The  right  of  a  squatter  or 
speculator  to  claim  the  right  of  appro- 
priation has  not  been  recognized  by  cus- 
tom nor  sanctioned  by  statute.  Avery 
v.  Johnson,  1:531,  59  Wash.  332,  109 
Pac.    1028. 


3.  A  mere  squatter  can  claim  no 
right  either  as  an  appropriator  or  as  a 
riparian  proprietor.  Avery  v.  Johnson, 
1:531,   59   Wash.   332,   109   Pac.   1028. 

After  Grant  of  Riparian  Rights. 

4.  A  riparian  owner  under  a 
former  holder  who  had  granted  the 
riparian  rights  to  another  is  not  estopped 
from  making  an  appropriation  nor  from 
enforcing  his  rights  as  appropriator 
against  the  grantee  of  the  riparian 
i  iuhts,  subject  to  the  terms  of  the  prior 
grant.  Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:140,  150 
Cal.  520,  89  Pac.  338. 

Determination     by    Territorial     Engi- 
neer. 

5.  Under  the  laws  of  1907,  c.  49, 
regarding  the  disposition  of  public 
waters,  the  territorial  engineer  is  not, 
either  by  the  express  terms  of  the  statute 
or  by  implication,  restricted  in  rejecting 
an  application  to  the  ground  that  the 
project  would  be  a  menace  to  the  public 
health  or  safety.  Young  v.  Hinderlider, 
1:338,  15  N.  M.  666,  110  Pac.  1045. 
(Annotated) 

6.  The  object  of  the  statute  is 
to  secure  the  greatest  possible  benefit  to 
the  public  from  the  public  waters  of  the 
state.  Youna  v.  Hinderlider,  1:338,  15 
N.  M.  666,   110  Pac.   1045. 

7.  It  is  of  public  interest  to  pro- 
tect  investors   against   worthless   invest- 
ments   by    official    approval    of    unsound 
enterprises.       Young      v.      Hinderlider, 
1:338,  15  N.  M.  666,  110  Pac.  1045. 

8.  It  is  against  public  interest 
that  an  irrigation  project  receive  official 
approval  when  the  result  would  be  the 
sale  of  land  which  could  not  be  irrigated 
at  the  price  of  irrigated  land.  Young  v. 
Hinderlider,  1:338,  15  N.  M.  666,  110 
Pac.  1045. 

9.  The  mere  fact  of  the  cost  of 
one  irrigation  project  in  excess  of  that 
of  another  is  no  ground  for  rejecting  the 
first,  but  the  cost  should  be  taken  into 
consideration  in  determining  upon  the 
granting  or  rejection  of  the  application. 
Young  v.  Hinderlider,  1:338,  15  N.  M. 
666,    110   Pac.    1045. 

10.  The  fact  that  one  applicant 
is  not  a  resident  of  the  territory  and 
that  others  are  actual  settlers,  may  be 
taken  into  consideration  in  determining 
the  question  of  public  interest,  but  should 
not  outweigh  all  other  considerations. 
Young  v.  Hinderlider,  1:338,  15  N.  M. 
666,  110  Pac.  1045. 


Index  to  Cases. 


781 


11.  That  a  subsequent  applica- 
tion for  approval  of  project  for  irri- 
gation is  better  than  a  prior  one,  is  no 
reason  why  the  prior  one  should  not  be 
granted  as  to  the  land  for  which  it  is 
available  or  feasible.  Young  v.  Hinder- 
lider,  1:338,  15  N.  M.  666,  110  Pac. 
1045. 

12.  The  laws  of  1907,  providing 
that  the  territorial  engineer  shall  have 
supervision  of  the  apportionment  of 
waters,  etc.,  do  not  relate  to  waters 
held  in  private  ownership  or  by  prior 
appropriation,  but  only  to  public  and 
unappropriated  waters  within  the  terri- 
tory. Vanderwork  (Territory  of  New 
Mexico,  Intervener)  v.  Hewes  et  al., 
1:351,  15  N.  M.  439,  110  Pac.  567. 

Water   Subject   to   Appropriation. 

Running  Stream. 

13.  Evidence  of  the  intermittent 
overflow  of  a  lake  together  with  a  slight 
flow  into  the  lake  in  dry  season  is  suffi- 
cient to  support  a  finding  that  the  lake 
with  its  tributaries  and  outlet  consti- 
tutes a  running  stream  subject  to  appro- 
priation. Duckworth  et  al.  v.  Watson- 
ville  Water  &  Light  Co.  et  al.,  1:140, 
150   Cal.   520,   89   I?ac.   338. 

Drainage    Water. 

14.  The  purpose  of  draining  one 
tract  of  land  does  not  destroy  the  right 
to  take  water  for  the  irrigation  of  other 
tracts.  Lower  Tulle  River  Ditch  Co.  v. 
Angiola  Water  Co.,  1:280,  149  Cal.  496, 
86   Pac.   1081. 

Seepage    or    Spring    Waters. 

15.  Section  1  of  Act  of  1907, 
providing  that  all  natural  waters  flow- 
ing in  streams  and  water  courses, 
whether  such  be  perennial  or  torrential, 
within  the  limits  of  the  Territory  of 
New  Mexico,  belong  to  the  public  and 
are  subject  to  appropriation  for  bene- 
ficial use,  does  not  apply  to  seepage  or 
percolating  waters  or  spring  waters  ap- 
pearing upon  private  lands  from  un- 
known causes.  Vanderwork  (Territory 
of  New  Mexico.  Intervener)  v.  Hewes  et 
al.,  1:351,  15  N.  M.  439,  110  Pac.  567. 

16.  The  territorial  engineer's 
jurisdiction,  with  the  exception  of  seep- 
age water  referred  to  in  section  53,  is 
limited  to  such  public  waters  as  are  em- 
braced in  section  1.  Vanderwork  (Ter- 
ritorv  of  New  Mexico,  Intervener)  v. 
Hewes  et  al.,  1:351,  15  N.  M.  439,  110 
Pac.    567. 

17.  The  term  seepage  waters,  as 
used   in  section   53   of  the   Act  of   1907, 


applies  only  to  constructed  reservoirs, 
ditches,  etc.  Vanderwork  (Territory  of 
New  Mexico,  Intervener)  v.  Hewes  et 
al.,   1:351,   15  N.  M.  439,  110  Pac.  567. 

18.  Section  53  of  Act  of  1907  has 
no  application  to  seepage  or  spring  water 
arising  upon  private  lands  from  an 
unknown  source.  Vanderwork  (Terri- 
tory of  New  Mexico,  Intervener)  v. 
Hewes  et  al.,  1:351,  15  N.  M.  439,  110 
Pac.  567. 

19.  Seepage  or  spring  water  ap- 
pearing upon  land  of  private  proprietor, 
is  not  subject  to  appropriation  and  dis- 
tribution under  the  Laws  of  1907,  but  any 
surplus  remaining  after  the  reasonable 
necessities  of  the  proprietor  of  the  land 
upon  which  the  spring  is  situated  and 
those  of  an  adjoining  owner  to  whom  he 
has  granted  the  right  to  use  the  waters, 
may  be  appropriated  under  the  general 
law  of  appropriation  of  waters.  Van- 
derwork (Territory  of  New  Mexico, 
Intervener)  v.  Hewes  et  al.,  1:351,  15 
N.   M.   439,   110   Pac.   567. 

20.  Where  seepage  or  spring 
water  appears  upon  the  land  of  a  private 
proprietor,  he  has  the  right  to  the  use 
thereof,  and  it  is  not  required  that  he 
apply  to  the  territorial  engineer  for 
permission  to  appropriate  the  same. 
Vanderwork  (Territory  of  New  Mexico, 
Intervener)  v.  Hewes  et  al.,  1:351,  15 
N.   M.   439,   110   Pac.   567. 

21.  The  Washington  statute 
(Ballinger's  Ann.  Code  &  Stats.,  § 
4114;  Pierce's  Code,  §  5829)  which 
gives  the  owner  of  the  land  upon  which 
the  spring  rises,  the  use  of  the  water 
flowing  therefrom,  provided  such  owner 
can  use  the  water  upon  his  own  premises, 
has  no  application  to  a  spring  having 
sufficient  flow  of  water  to  form  a  water 
course.  Hollett  v.  Davis,  1:415,  54 
Wash.   326,   103  Pac.  423.      (Annotated) 

Water  on   Indian   Reservation. 

22.  No  right  of  appropriation  of 
waters  on  Indian  reservation  could  ante- 
date opening  of  reservation  to  settle- 
ment, and  no  such  right  could  antedate 
actual  bona  fide  settlement  upon  con- 
tiguous lands  capable  of  being  irrigated 
by  the  waters  of  a  stream.  Avery  v. 
Johnson,  1:531,  59  Wash.  332,  109  Pac. 
1028. 

Compliance  with  Statute. 

23.  The  actual  appropriation  of 
water  without  compliance  with  the  code 
provisions  is  enough  to  give  the  appro- 
priator  a  right  as  against  any  one  who 
did  not  have  at  the  time  of  his  diversion, 


782 


Watek  and  Mineral  Cases. 


a  superior  right.  Duckworth  et  al.  v. 
Watsonville  Water  &  Light  Co.  et  al., 
1:128,  158  Cal.  206,  110  Pac.  927. 
( Annotated ) 

24.  Actual  appropriation  -with- 
out compliance  with  the  code  provisions 
cannot  devest  prior  rights,  but  will  be 
good  as  against  a  subsequent  appropri- 
ator.  Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:128,  158 
Cal.  206,   110  Pac.   927.      (Annotated) 

25.  Compliance  with  the  sections 
of  the  code  relative  to  appropriation  are 
important  only  in  so  far  as  the  claimant 
seeks  to  have  his  rights  relate  back  to 
the  date  of  posting.  Duckworth  et  al. 
v.  Watsonville  Water  &  Light  Co.  et  al., 
1:128,   158  Cal.  206,  110  Pac.  927. 

26.  Compliance  with  code  pro- 
visions will  cut  off  rights  accruing  be- 
tween the  date  of  posting  and  the  actual 
diversion  for  beneficial  purposes.  Duck- 
worth et  al.  v.  Watsonville  Water  & 
Light  Co.  et  al.,  1:128,  158  Cal.  206, 
110   Pac.   927. 

27.  Where  no  rights  have  inter- 
vened, actual  appropriation  may  be 
made  without  following  the  provisions 
of  the  code.  Duckworth  et  al.  v.  Wat- 
sonville Water  &  Light  Co.  et  al.,  1  :128, 
158   Cal.  206,   110  Pac.   927. 

28.  Where  no  claim  of  any  right 
accruing  between  posting  of  notice  and 
actual  diversion  and  use  of  water  is 
made,  failure  to  follow  the  code  pro- 
visions is  immaterial.  Duckworth  et  al. 
v.  Watsonville  Water  &  Light  Co.  et  al., 
1:128,   158  Cal.  206,   110  Pac.  927. 

29.  A  person  may  by  prior  actual 
and  completed  appropriation  and  use, 
without  proceeding  under  the  code,  ac- 
quire a  right  to  the  water  for  his  bene- 
ficial use  which  will  be  superior  and 
paramount  to  the  title  of  one  making 
subsequent  appropriation  from  the  same 
stream  in  the  manner  provided  by  the 
code.  Lower  Tulle  River  Ditch  Co.  v. 
Angiola  Water  Co.,  1:280,  149  Cal.  496, 
86  Pac.  1081. 

Notice. 

30.  A  notice  of  appropriation 
which  states  that  the  water  is  to  be 
used  on  certain  described  land  and  upon 
other  land  not  described,  to  be  conveyed 
in  "a  six-inch  pipe  or  by  a  pipe  of 
other  dimensions"  is  sufficient  to  author- 
ize use  on  the  land  described  through  a 
six-inch  pipe.  Duckworth  et  al.  v.  Wat- 
sonville Wlater  &  Light  Co.  et  al.,  1 : 1 40, 
150  CaL  520,  89  Pac.  338. 


31.  In  order  to  make  a  valid 
appropriation  of  water  it  is  not  necessary 
to  post  and  record  a  notice  of  appropri- 
ation as  provided  in  the  Civil  Code,  as 
the  method  of  acquiring  the  right  to  use 
the  water  as  therein  described  is  not 
exclusive.  Lower  Tulle  River  Ditch  Co. 
v.  Angiola  Water  Co.,  1:280,  149  Cal. 
496,  86  Pac.  1081. 

Conduction     through     Natural     Chan- 
nels. 

32.  A  person  who  is  making  an 
appropriation  of  water  from  a  natural 
source  or  stream  is  not  bound  to  carry 
it  to  the  place  of  use  through  a  ditch  or 
artificial  conduit,  or  through  a  ditch  or 
canal  cut  especially  for  that  purpose. 
He  may  make  use  of  any  natural  or 
artificial  channel  or  natural  depression 
which  he  may  find  available  and  con- 
venient for  that  purpose,  and  his  appro- 
priation so  made  will,  so  far  as  such 
moans  of  taking  is  concerned,  be  as  effect- 
ual as  if  he  had  carried  it  through  a 
ditch  or  pipe  line  made  for  that  purpose 
and  no  other.  Lower  Tulle  River  Ditch 
Co.  v.  Angiola  Water  Co.,  1:280,  149 
Cal.  496,  86  Pac.  1081.     (Annotated) 

Head   Gates. 

33.  It  is  unnecessary  that  there 
should  be  any  head  gate  of  board  or 
masonry  at  the  place  of  diversion  if  a 
simple  cut  will  accomplish  the  purpose. 
Lower  Tulle  River  Ditch  Co.  v.  Angiola 
Water  Co.,  1:280,  149  Cal.  496,  86  Pac. 
1081. 

Priorities. 

34.  The  law  is  thoroughly  set- 
tled that  as  between  two  appropriators, 
the  one  first  in  time  is  first  in  right 
(per  Shaw,  J.,  concurring  opinion). 
Duckworth  et  al.  v.  Watsonville  Water 
&  Light  Co.  et  al.,  1:128,  158  Cal.  206, 
110   Pac.   927. 

35.  It  is  an  elementary  law  of 
appropriation  of  water  for  irrigation 
that  the  first  appropriator  is  entitled 
to  the  quantity  of  water  appropriated 
by  him  to  the  exclusion  of  subsequent 
claimants  by  appropriation  or  riparian 
ownership.  Avery  v.  Johnson,  1:531, 
59  Wash.  332,  109  Pac.  1028. 

Failure   to    Use. 

36.  If  one  co-owner  elects  to  take 
less  than  the  quantity  of  water  to  which 
he  is  entitled,  one  wTho  has  the  right  to 
use  the  ditch  to  convey  waters  in  excess 
of  the  quantity  to  which  the  owners 
thereof  are  entitled  is  not  in  a  position 
to  complain.  Carnes  v.  Dalton,  1:207, 
—  Or.  — ,  110  Pac.  170. 


Index  to  Cases. 


783 


Adverse   User. 

37.  The     right     to     appropriate 

water  exists  wherever  water  exists  unap- 
propriated and  free  from  superior  claims, 
and  an  appropriation  and  use  become 
effective  against  a  private  right  only 
after  five  years'  adverse  user,  and  then 
onlv  to  the  extent  of  the  use.  Duck- 
worth et  al.  v.  Watsonville  Water  & 
Light  Co.  et  ah,  1:140,  150  Cal.  520,  89 
Pac.  338. 
Commingling  of  Waters. 

38  The  fact  that  waters  of  reser- 

voir '  company  and  irrigation  company 
were  commingled,  defendants  having 
right  to  use  certain  of  irrigation  com- 
pany's waters,  does  not  invest  defendants 
with  right  to  take  water  which  does 
not  belong  to  them,  nor  does  the  neglect 
of  duty  of  the  irrigation  company  to 
distribute  the  commingled  waters  give 
such  right.  Hackett  et  al.  v.  Larimer  & 
Weld  Reservoir  Company,  1:224,  4b 
Colo.   178,   109   Pac.   965. 

39  The      commingling      of      two 

classes  of  water,  to  part  of  one  of  which 
defendant  was  entitled,  gives  him  no 
ri<rht  to  divert  that  part  in  which  he  had 
no°  interest.  Consumers  of  water  sup- 
plied by  irrigation  company  cannot  com- 
plain of  any  use  of  canals  or  ditches 
granted  by  the  latter  or  acquired  by 
operation  of  law,  which  does  not  inter- 
fere with  their  rights.  Hackett  et  al. 
v  Larimer  &  Weld  Reservoir  Company, 
1:224,  48  Colo.  178,  109  Pac.  965. 

ASSESSMENT  WORK. 


Claims   Held    in   Common. 

1  When  several  claims  are  held 
in  common,  the  assessment  work  neces- 
sary to  keep  them  alive  may  be  done 
on  one  claim  if  for  the  benefit  and  ad- 
vantage of  all.  Morgan  v.  Myers,  1 :494, 
—  Cal.  — ,  113  Pac.  153. 

2  The  fact  that  mining  claims 
are' not  contiguous  and  that  they  are 
separated  by  a  ravine  goes  to  show  that 
assessment  work  done  on  one  is  not  ioi 
the  benefit  of  the  other.  Morgan  v. 
Myers,    1:494,    —    Cal.    — ,    113    Pac. 

153-  ,     i.  «. 

3  Upon  the  question  of  whether 

or  not  a  number  of  claims  constitute  a 

group,   the   intention  of  the  owner  was 

Lu     properly     excluded.       Morgan     v. 

Myers,  1 :494,  —  Cal.  —    113  Pac.  153. 


the  Murphy  fraction  for  nine  years,  and 
that  he  had  worked  and  was  in  posses- 
sion of  said  fraction  for  more  than  five 
vears,  and  that  during  said  period  of 
time  there  was  no  adverse  claim  made 
to  said  premises  or  to  any  part  thereof, 
is  fully  sustained  by  the  evidence. 
Flynn  Group  Min.  Co.  v.  Murphy,  1:619, 
18'  Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 
Under  Canadian   Law. 

5.  Building  a  cabin  for  living 
purposes  on  a  placer  claim  is,  under 
Act  of  1882,  a  representation  and  bona 
fide  working  of  claim.  Wheelden  v. 
Cranston,  1:659,  12  Brit.  Col.  489. 

6.  Bona  fide  construction  of  rock- 
cut' and  drain  through  adjoining  claim, 
and  working  that  part  of  same,  is  a 
working  of  claim  in  question.  Wheel- 
den v.  Cranston,  1:659,  12  Brit.  Col. 
489. 

ASSESSMENTS. 

By    drainage    district,    see    Drainage, 

34-40.  . 

By  irrigation  districts,  see  Irrigation 

Districts,   6-22. 
For   taxation,    see   Taxation,   4. 

ATTORNEYS'     FEES. 

In   proceedings   to    enforce   mechanics' 
liens,  see  Mechanics'  Liens. 

BONDS. 

Power   to    Issue. 

1.  Municipalities     cannot     issue 

bonds  unless  authority  to  do  so  is  ex- 
pressly given   or   clearly   implied      Hall 
v  Hood  River  Irrigation  District,  1  :iol, 
_1   Or.   — ,   HO   Pac.   405. 
Second  Series  of  Irrigation  Bonds. 

2  Under  section  4714  of  the  Code, 

as  amended  in  1909,  irrigation  district 
has  power  to  issue  additional  bonds  alter 
having  exhausted  the  funds  received 
from  a  sale  of  bonds  prior  to  amendment. 
Hall  v.  Hood  River  Irrigation  District, 
1-151,  —  Or.  — ,   HO  Pac.  405. 

BOUNDARIES. 

Excessive  location,  see  Location,  40-43. 

Marking  location  on  ground,  see  Loca- 
tion, 29-34.  . 

Of  irrigation  districts,  see  Irrigation 
Districts,    4,    5. 


CHARGES. 


Reasonableness. 


had   performed iS.  assessment  work  on      able  charge  for  water  for  irrigation,  the 


784 


Water  and  Mineral  Cases. 


cost  of  construction  and  operation  of  the 
works,  the  productiveness  of  the  land, 
and  the  other  circumstances  which 
show  what  the  owners  can  afford  to  pay 
for  water,  must  be  taken  into  consider- 
ation. Young  v.  Hinderlider,  1:338, 
15  N.  M.  666,   110  Pac.   1045. 

CHATTEL    MORTGAGES. 
Distinguished  from  Conditional  Sale. 

Agreement  that  party  does  sell, 
assign,  transfer  and  set  over  to  another 
a  certain  quartz  mill,  providing  that 
until  the  entire  purchase  price  be  paid, 
title  shall  remain  in  the  seller,  is  a  con- 
ditional sale  and  not  a  chattel  mortgage, 
although  it  be  provided  that  the  seller 
may,  at  his  option,  enter  upon  and  take 
possession  of  the  mill,  etc.,  and  sell  the 
same  in  case  of  default,  crediting  the 
proceeds  after  deducting  expenses. 
Washburn  v.  Inter-Mountain  Mining  Co., 
1:90,  —  Or.  — ,  109  Pac.  382. 

COAL    LANDS. 

Alaskan  Entries. 

1-  The     restrictions     of     section 

2350,  U.  S.  Revised  Statutes,  relating  to 
entries  upon  coal  lands  held  not  to  be 
imported  into  the  act  of  April  28,  1904, 
relating  to  coal  lands  in  Alaska,  the 
latter  act  being  subsequent  and  therefore 
paramount  to  the  former.  United 
States  v.  Munday  et  al.,  1 :722,  180  Fed. 
375. 

2.  The  prohibitions  and  limita- 
tions of  section  2350,  U.  S.  Revised  Stat- 
utes, held  to  apply  to  coal  entries  made 
in  the  district  of  Alaska  under  the  act 
of  April  28,  1904,  the  object  and  purpose 
of  the  latter  act  being  to  provide  for  a 
difference  only  in  the  mode  of  location, 
the  time  and  manner  of  making  final 
proof  and  the  trial  of  adverse  claims. 
United  States  v.  Doughton,  1:736,  186 
Fed.  226. 

3.  A  foreign  corporation  can  not 
lawfully  acquire  or  hold  a  coal  claim 
in  Alaska  either  in  its  corporate  name 
or  in  the  name  of  an  agent  or  trustee. 
United  States  v.  Munday  et  al.,  1:722, 
186  Fed.  375. 

4.  One  who  opens  or  improves  a 
coal  mine  in  Alaska,  locates  a  claim, 
marks  its  lines  and  corners,  and  posts 
and  records  a  notice  in  accordance  with 
the  statute,  and  subsequently  sells  or 
mortgages  the  same  is  not  a  dummy 
entry  man.  United  States  v.  Munday  et 
al.,  1:722,  186  Fed.  375. 


5.  A    locator    of    coal    lands    in 

Alaska  has  the  right  to  sell  or  mortga^ 
his  claims  before  obtaining  a  patent  and 
his  vendee  if  a  citizen  of  the  United 
States  or  a  group  of  citizens  may  receive 
the  patent.  United  States  v.  Munday  et 
al.,    1:722,    186    Fed.    375. 

COLLATERAL  ATTACK. 

On   organization   of   drainage   district, 
see  Drainage  Districts,   17,  IS. 

COMMISSIONERS. 
See  Drainage,   33. 

COMPROMISE. 

Claimants  of   Public   Lands. 

A  compromise  between  one  assert- 
ing title  under  a  mineral  location  and 
another  claiming  under  an  agricultural 
entry,  whereby  each  received  a  part  under 
his  application,  is  not  illegal  or  fraudu- 
lent. Murray  v.  White  et  al.,  1:538, 
—  Mont.  — ,   113   Pac.   754. 

CONDITIONAL    SALES. 

See  Chattel  Mortgages. 

Status    of    property    sold    as    fixtures, 

see   Fixtures,    1,   2. 
Mechanic's  lien  on  property  sold  under 

condition,  see  Mechanics'  Liens,  3. 

CONSIDERATION. 

See  Contracts,   1. 

CONSPIRACY. 

See  Criminal  Law,  2,  3. 

CONSTITUTIONAL    LAW. 
Delegation    of    Powers. 

That  the  legislative  power  for 


1. 


local  purposes  may  be  delegated  to 
minor  municipalities,  is  a  matter  of  uni- 
versal recognition  and  constant  practice. 
Ross  v.  Board  of  Supervisors  of  Wright 
County,  1:358,  128  Iowa  427,  104  N. 
W.  506,  1  L.  R.  A.    (N.  S.)    431. 

Conferring  Judicial    Powers. 

2  Statute    of    1905     (Sess.    Laws 

443,  Hen.  G.  L.,  p.  374),  creating  the 
Sacramento  Drainage  District,  contain- 
ing lands  situated  in  ten  different  coun- 
ties, for  the  purpose  of  promoting  drain- 
age therein,  providing  for  the  election 
of  commissioners  with  various  duties  and 
powers,  for  the  levying  of  assessments 
on  lands  benefited  to  pay  the  cost  of  the 
reclamation     thereof,     and     creating     a 


Index  to  Cases. 


785 


board  of  river  control  with  powers  for 
straightening  and  controlling  the  Sacra- 
mento and  San  Joaquin  Rivers,  is  not 
unconstitutional.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,   155  Cal.   373,   103  Pac.  207. 

3.  The  creation  of  a  board  of 
drainage  commissioners,  with  quasi  judi- 
cial powers,  that  is,  to  hear  and  deter- 
mine objections  to  and  to  equalize 
assessments,  is  not  unconstitutional. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  1:107,  155  Cal.  373, 
103   Pac.   207. 

Interstate  Commerce. 

4.  A  statute  conserving  the  sup- 
ply of  natural  gas  of  the  State  of  Okla- 
homa by  prohibiting  interstate  pipe 
lines,  is  unconstitutional  as  a  violation 
of  the  interstate  commerce  clause. 
Charles  West,  Attorney  General  of  the 
State  of  Oklahoma,  App'lnt,  v.  Kansas 
Natural  Gas  Co.  et  al.,  1:184,  —  U. 
S.  — ,  31   Sup.   Ct.   564. 

5.  An  Oklahoma  statute  with- 
holding a  charter,  the  right  of  eminent 
domain,  and  the  right  to  use  the  high- 
ways of  the  state  from  corporations 
organized  for  the  purpose  of  operating 
interstate  pipe  lines,  held  unconstitu- 
tional as  discriminating  and  unreason- 
ably burdening  interstate  commerce. 
Charles  West.  Attorney  General  of  the 
State  of  Oklahoma,  App'lnt,  v.  Kansas 
Natural  Gas  Co.  et  al.,  1:184,  —  U.  S. 
— ,   31   Sup.   Ct.   564. 

Due  Process  of  Law. 

6.  A  drainage  statute  which  pro- 
vides for  notice  to  the  property  owner 
at  some  stage  of  the  proceedings  before 
an  assessment  is  made,  is  not  open  to 
constitutional  objection  simply  because 
it  does  not  provide  for  a  new  or 
additional  notice  of  each  successive  step 
leading  up  to  the  assessment.  Ross  v. 
Board  of  Supervisors  of  Wright  County, 
1:358,  128  Iowa  427,  104  N.  W.  506,  1 
L.  R.  A.    (N.  S.)    431.      (Annotated) 

7.  The  act  providing  for  adding 
lands  "in  the  vicinity"  to  a  drainage 
district  without  provision  for  notice  to 
the  owners  thereof  is  void  as  a  taking 
of  the  property  added  without  due 
process  of  law,  and  void  as  to  others  to 
whom  notice  is  given  where  the  taking 
of  the  lands  "in  the  vicinity"  is  such  an 
essential  feature  of  the  scheme  or  plan 
sought  to  be  effected  that  its  elimination 
would  lead  to  results  not  contemplated 
by  the  legislature.  Ross  v.  Board  of 
Supervisors  of  Wright  County,  1:358, 
128  Iowa  427,  104  N.  W.  506;  1  L.  R. 
A.    (N.  S.)    431.      (Annotated) 

W.   &  M.— 50 


8.  Where  an  opportunity  to  be 
heard  either  before  or  after  the  levying 
of  the  assessment  is  given,  there  is  no 
taking  of  property  without  due  process 
of  law.  People  ex  rel.  Chapman  v.  Sac- 
ramento Drainage  District,  1:107,  155 
Cal.   373,   103  Pac.  207. 

9.  Power  to  make  a  final  deter- 
mination beyond  which  there  is  no  ap- 
peal must  rest  somewhere,  and  in  the 
absence  of  express  or  clearly  implied 
constitutional  limitations  upon  its  au- 
thority in  this  respect,  the  legislature 
may  confide  that  power  in  any  given 
proceeding  to  any  court  or  commission, 
and  if  the  interested  party  be  given  no- 
tice and  has  an  opportunity  to  be  heard, 
then  if  the  finding  is  against  him,  no 
constitutional  guaranty  is  violated  by 
denying  him  the  right  of  appeal.  Ross 
v.  Board  of  Supervisors  of  Wright  Coun- 
tv,  1:358,  128  Iowa  427,  104  N.  W. 
506,   1   L.   R.  A.    (N.   S.)    431. 

10.  Due  process  of  law  does  not 
necessarily  imply  judicial  procedure  in 
a  court  of  record  or  right  of  trial  by 
jury.  Ross  v.  Board  of  Supervisors  of 
Wr'isht  Countv,  1:358,  128  Iowa  427, 
104  "N.  W.  500,  1  L.  R.  A.  (N.  S.)  431. 
(Annotated) 

Obligation  of  Contracts. 

11.  Obligation  of  contract  is  not 
impaired  by  a  state  changing  its  plans 
for  the  reclamation  of  overflowed  lands, 
and  creating  new  and  different  agents 
and  mandatories.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,  155  Cal.  373,  103  Pac.  207. 

Property  Qualification  of  Voters. 

12.  A  property  qualification  in 
order  to  be  a  voter  at  elections  in  drain- 
age or  reclamation  districts  does  not  vio- 
late a  constitutional  inhibition  against 
requiring  a  property  qualification  for 
voters.  The  legislature  permits  the 
landowners  to  appoint  their  own  agents, 
and  the  method  which  it  imposes  in 
making  the  selection  is  wholly  within 
its  own  control.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,  155  Cal.  373,  103  Pac.  207. 

Trial    by  Jury. 

13.  Provisions  of  the  Illinois 
Drainage  Act,  providing  for  the  assess- 
ment of  damages  by  a  jury  or  by  com- 
missioners, are  unconstitutional  and 
void.  Hull  v.  Sangamon  River  Drain- 
age District,  1:593,  219  111.  454,  76  N. 
E.  701. 


786 


Water  and  Mineral  Cases. 


CONTRACTS. 

Impairment  of  obligation,  see  Consti- 
tutional Law,   11. 

Consideration. 

1.  Evidence  of  discovery  held 
sufficient  to  constitute  the  relinquish- 
ment of  a  placer  claim  a  sufficient  con- 
sideration for  a  contract.  Murray  v. 
White  et  al.,  1:538,  —  Mont.  — ,  113 
Pac.  754. 

Legality. 

2.  A  contract  whereby  one  claim- 
ant agrees  to  procure  a  patent  to  cer- 
tain land  for  the  use  of  another  in 
order  to  defeat  a  prior  grant  by  that 
other,  is  not  illegal  nor  against  public 
policy.  Murray  v.  White  et  al.,  1:538, 
—  Mont.  — ,  113  Pac.  754. 
Construction. 

3.  A  contract  whereby  one  party 
agrees  to  pay  one-half  the  expense  of 
securing  a  patent  to  land  held  not  to 
cover  one-half  of  a  contingent  fee  of 
$8,000  to  the  attorney  assisting  in  pro- 
curing the  patent.  Murray  v.  White  et 
al.,  1:538,  —  Mont.  — ,  113  Pac.  754. 

4.  Under  a  contract  for  the  sale 
of  mining  property  providing  that  in 
case  any  ore  is  shipped  from  the  property 
during  a  certain  period  the  net  proceeds 
shall  be  deposited  to  the  credit  of  the 
vendors  and  applied  in  part  payment, 
the  term  "net  proceeds"  is  to  be  taken 
to  refer  merely  to  ore  shipped  to  a  mill 
or  smelter  for  conversion  and  the  de- 
ductions to  be  made  are  the  deductions 
which  in  the  ordinary  course  of  business 
would  be  made  at  the  smelter,  including 
freight  and  smelting  charges.  Grobe  v. 
Doyle,    1:664,    12    Brit.   Col.    191. 

CONVEYANCES. 

Sufficiency    of    certificate    of    acknowl- 
edgment,   see    Acknowledgment. 

Knowledge   of   corporation   as    to    exe- 
cution,  see   Corporations,    3. 

Estoppel  by  deed,   see  Estoppel,   1-3. 

Exceptions    and    reservations    in    pat- 
ents, see  Patents,  7,  8. 

Deed   of   right   of   way  to  railroad   as 
conveying  oil  and  mineral,  see  Rail- 
roads, 4. 
Construction. 

1.  The  construction  of  a  deed  is 
governed  by  the  intention  of  the  grantor 
as  gathered  from  the  whole  instrument. 
Gladys  City  Oil,  Gas  &  Manufacturing 
Co.  et  al.  v.  Right  of  Way  Oil  Co.  et  al., 
1:499,  —  Tex.  — ,   137   S.   W.   171. 

2.  When  a  grantor  first  uses 
terms  confined  to  a  particular  class  and 


subjoins  a  term  of  general  import,  thia 
term  when  thus  used  embraces  only 
things  ejusdem  generis.  Gladys  City  Oil, 
Gas  &  Manufacturing  Co.  et  al.  v.  Right 
of  Way  Oil  Co.  et  al.,  1:499,  —  Tex.  — 
137   S.   W.    171. 

3.  The  rule  that  the  language  of 
a  deed  should  be  construed  against  the 
grantor  should  be  reversed  where  the 
deed  is  prepared  by  the  grantee. 
Gladys  City  Oil,  Gas  &  Manufacturing 
Co.  et  al.  v.  Right  of  Way  Oil  Co.  et  al., 
1:499,  —  Tex.  — ,   137   S.  W.   171. 

4.  The  rule  that  the  language 
of  a  deed  should  be  construed  against 
the  grantor  should  not  be  applied  until 
all  other  rules  of  construction  fail. 
Gladys  City  Oil,  Gas  &  Manufacturing 
Co.  et  al.  v.  Right  of  Way  Oil  Co.  et 
al.,   1:499,  —  Tex.  — ,  137  S.  W.  171. 

5.  The  term  "right  of  way"  or- 
dinarily means  an  easement;  but  the 
use  of  additional  words  may  widen  it 
into  a  fee.  Gladys  City  Oil,  Gas  & 
Manufacturing  Co.  et  al.  v.  Right  of 
Way  Oil  Co.  et  al.,  1:499,  —  Tex.  — , 
137  S.  W.   171. 

Covenants. 

6.  A  sale  and  conveyance  of  all 
right,  title,  and  interest  in  property  im- 
plies covenants  of  special  warranty. 
Shaw  v.  Caldwell  et  al.,  1:558,  —  Cal. 
— ,   115  Pac.  941. 

Exceptions   and    Reservations. 

7.  Evidence  of  annotations  in  of- 
ficial indexes,  indicating  an  exception 
in  a  burnt  deed,  together  with  evidence 
of  a  custom  of  the  railroad  company 
grantor  to  make  such  exceptions  and  a 
portion  of  the  deed  supporting  the  con- 
tention, held  sufficient  to  show  a  reser- 
vation of  the  mineral  rights  in  land 
granted.  J.  R.  Crowe  Coal  &  Mining  Co. 
v.  Atkinson  et  al.,  1:446,  —  Kan.  — , 
116  Pac.  499. 

Operation   and    Effect. 

8.  Effect  of  conveyance  by  land- 
owner of  all  riparian  and  water  rights 
and  privileges  except  for  domestic  uses 
and  irrigation,  and  for  stock,  is  to  con- 
vey all  water  and  water  rights  and  priv- 
ileges of  every  kind,  character  and  de- 
scription which  apply  or  in  any  manner 
pertain  to  the  land,  except  those  reserv- 
ed. Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:128,  158 
Cal.   206,   110   Pac.   927. 

CORPORATIONS. 

Status   of   drainage   district   as   corpo- 
ration, see  Drainage,  2. 


Index  to  Cases. 


787 


Notice  to  and    Knowledge  of  Officers 
and    Agents. 

1.  A  corporation  is  presumed  to 
know  the  terms  of  an  agreement  made 
by  its  president  and  manager  for  its 
benefit.  Washburn  v.  Inter-Mountain 
Wining  Co.,  1:90,  —  Or.  — ,  109  Pac. 
382. 

2.  To  affect  a  director  of  a  cor- 
poration individually,  knowledge  _  must 
be  brought  home  to  him  and  he  is  not 
presumed  to  know  the  terms  of  an  agree- 
ment made  by  the  president  and  manager 
of  the  corporation.  Washburn  v.  Inter- 
Mountain  Mining  Co.,  1:90,  —  Or.  , 
109  Pac.  382. 

3.  The  fact  that  a  deed  was  pro- 
cured by  the  attorney  for  a  railroad 
company  and  was  delivered  and  re- 
mained in  its  custody,  shows  conclu- 
sively that  the  deed  was  taken  with  its 
knowledge  and  procurement.  Gladys 
City  Oil,  Gas  &  Manufacturing  Co.  et 
al.  v.  Right  of  Way  Oil  Co.  et  al., 
-1:499,  _  Tex.  — ,  137   S.  W.  171. 

COURTS. 

Construction    of   State   Statutes. 

The  federal  courts  will  not  con- 
sider the  construction  of  statutes  by 
state  courts  or  the  consistency  thereof 
with  the  state  Constitution,  where  made 
before  any  rights  or  burdens  involved 
in  the  litigation  were  imposed.  Chicago, 
B  &  Q.  R.  Co.  v.  Board  of  Supervisors 
of  Appanoose  County,  1:459,  170  Fed. 
665. 

COVENANTS. 

See  Conveyances,  6. 

CRIMINAL    LAW. 

Federal  Statutes. 

1.  The  only  crimes  punishable 
under  federal  law  are  those  defined  by 
the  laws  enacted  by  congress.  United 
States  v.  Munday  et  al.,  1 :722,  186  Fed. 
375. 

Conspiracy. 

2.  The  elements  of  the  crime  of 
conspiracy  under  U.  S.  laws  are  (1)  an 
object  which  must  be  the  commission  of 
an  offense  against  the  United  States  to 
defraud  the  United  States,  (2)  a  plan 
of  accomplishment,  (3)  an  agreement  for 
co-operation,  (4)  an  overt  act  by  a  con- 
spirator to  effect  the  object  of  the  con- 


spiracy. United  States  v.  Munday  et  al., 
1:722,    186   Fed.   375. 

3.  An  indictment  charging  a  con- 

spiracy to  defraud  the  United  States  by 
obtaining  title  to  5000  acres  of  coal  land 
by  means  of  39  false,  fraudulent  and 
fictitious  entries  made  by  as  many  dif- 
ferent persons  ostensibly  for  their  own 
use  but  in  truth,  etc.,  held  to  charge  a 
crime  under  section  2350  of  the  Revised 
Statutes.  United  States  v.  Doughten, 
1:736,   186   Fed.   226. 

DAMAGES. 

See  Drainage,  41-45. 

Sufficiency     of     objection     to     present 

question  of  measure  for  review,   see 

Appeals   and  Error,   6. 

Measure  for   Flowing    Lands. 

Where  the  wrong  is  of  a  perma- 
nent nature  and  continuous,  springing 
from  the  manner  in  which  the  ditch  or 
channel  is  completed,  on  account  of  the 
diversion  of  surface  water,  the  land  of 
the  abutting  proprietor  necessarily  being 
injured  by  such  diverted  water,  such 
proprietor  may  treat  the  act  of  the  rail- 
way company  as  a  permanent  injury 
and  recover  his  damages  in  the  conse- 
quent depreciation  of  the  value  of  his 
property,  and  in  such  case  the  recovery 
of  the  damage  results  in  a  consent  on 
the  part  of  such  proprietor  to  such  man- 
ner  of  maintaining  such  ditch  or  chan 
nel,  concluding  both  him  and  any  subse- 
quent owner  of  such  land.  Chicago,  Rock 
Island  &  Pacific   Railway   Co.  v.   Davis, 

1:566,     26    Okla.     434,     109    Pac.    214. 

(Annotated) 

DECREE. 

Enjoining  interference  with  water,  see 
Injunctions,   10. 

DEEDS. 

See   Conveyances. 

Sufficiency    of    certificate    of    acknowl- 
edgment,   see    Acknowledgment. 
Estoppel  by  deed,  see  Estoppel,   1-3. 

DISCOVERY. 

As  essential  to  location,  see  Location, 
12-24. 

DISTRICTS. 

See    Drainage,   25-32;    Irrigation   Dis- 
tricts. 


788 


Water  and  Mineral  Cases. 


DITCHES. 

Use   in   General. 

1.  One  entitled  to  use  ditch  only 
for  purpose  of  conveying  surface  waters 
has  no  right  to  occasion  injury  to  own- 
ers of  ditch.  Carnes  v.  Dalton,  1:207, 
—  Or.  — ,  110  Pac.  170. 

2.  Owners  of  ditch  are  under  no 
obligation  to  see  there  is  water  in  canal 
to  supply  one  whose  right  is  only  to  use 
ditch  to  convey  surplus  waters.  Carnes 
v.  Dalton,  1:207,  —  Or.  — ,  110  Pac. 
170. 

Tenants   in   Common. 

3.  Each  of  several  tenants  in 
common  of  an  irrigation  ditch  and  dam 
is  responsible  in  proportion  to  his  in- 
terest therein  for  the  maintenance  and 
repair  of  the  ditch,  and  in  case  of  de- 
fault of  one  or  more  the  other  has  the 
right  to  make  such  repairs,  for  which 
the  defaulting  party  becomes  liable  for 
his  pro  rata.  But  such  failure  does  not 
justify  a  third  party  in  making  up  the 
loss  occasioned  by  the  default  by  draw- 
ing off  the  water  of  the  former.  Carnes 
v.  Dalton,  1:207,  —  Or.  — ,  110  Pac. 
170. 

4.  One  of  the  co-owners  of  a  com- 
pany ditch  has  a  right  of  action  against 
one  having  the  right  to  use  the  ditch  for 
conveying  surplus  waters,  who  causes 
a  depletion  of  the  waters  to  the  injury 
of  such  co-owner.  Carnes  v.  Dalton, 
1:207,  —  Or.  — ,  110  Pac.  170.  (An- 
notated ) 

5.  In  action  by  one  co-owner  of 
an  irrigation  ditch  against  a  party  di- 
verting certain  waters  therefrom  to  his 
injury,  the  other  co-owner  is  not  a  nec- 
essary party  where  there  is  no  dispute 
as  to  the  rights  of  the  co-owners.  Carnes 
v.  Dalton,  1:207,  —  Or.  — ,  110  Pac. 
170.      (Annotated) 

6.  One  tenant  in  common  of  a  ditch 
or  water  right  may  institute  a  suit  for 
unlawful  interference  therein  by  another 
tenant.  Carnes  v.  Dalton,  1 :207,  —  Or. 
— ,    110   Pac.   170. 

Over   Public    Lands. 

7.  The  Act  of  Congress  of  Feb- 
ruary 15,  1901,  providing  for  running 
telegraph  lines,  pipe  lines,  etc.,  through 
national  parks  and  reservations,  and  the 
Act  of  March  3,  1891,  providing  for 
rights  of  way  for  irrigation  ditches,  etc., 
over  public  lands,  are  not  inconsistent, 
and  the  later  act  does  not  repeal  or 
modify  the  earlier.  United  States  v. 
Lee,  1:479,  15  N.  M.  382,  110  Pac.  607. 


8.  The  Act  of  Congress  of  March 
3,  1891,  providing  for  rights  of  way  for 
irrigation  ditches,  canals,  etc.,  over  the 
public  lands  of  the  United  States,  grants 
an  easement  which  upon  approval  by  the 
secretary  of  the  interior,  becomes  per- 
manent. United  States  v.  Lee,  1:479, 
15  N.  M.  382,  110  Pac.  607. 

9.  The  Act  of  Congress  of  Feb- 
ruary 15,  1901,  providing  for  telegraph 
lines,  pipe  lines,  etc.,  through  national 
parks  and  reservations,  grants  merely  a 
license,  which  may  be  revoked  at  any 
time.  United  States  v.  Lee,  1:479,  15 
N.   M.   382,    110   Pac.   607. 

10.  Irrigation  ditches,  canals,  etc., 
may  be  constructed  upon  the  unsurveyed 
public  lands,  and  maps  and  plats  there- 
of are  not  required  to  be  filed  until 
twelve  months  after  survey.  United 
States  v.  Lee,  1:479,  15  N.  M.  382,  110 
Pac.   607. 

11.  It  is  not  necessary  to  secure 
the  approval  of  the  secretary  of  the  in- 
terior before  constructing  irrigation 
ditches  or  canals  upon  the  unsurveyed 
public  lands  which  are  not  national 
parks  or  reservations,  before  construc- 
tion can  be  made.  United  States  v.  Lee, 
1:479,    15   N.   M.   382,    110   Pac.    607. 

12.  The  rights  of  settlers  on  the 
public  lands  cannot  be  adjudicated  in  a 
suit  by  the  United  States  to  restrain 
the  maintenance  of  irrigation  ditches 
on  the  public  lands.  United  States  v. 
Lee,  1:479,  15  N.  M.  382,  110  Pac.  607. 

Action  to  Determine  Adverse  Claims. 

13.  Where  defendant  insists  upon 
the  right  to  deplete  the  flow  of  water  in 
a  ditch  and  that  his  rights  therein  be 
adjudicated,  an  action  is  maintainable 
under  B.  &  C.  Comp.,  §  394,  authorizing 
one  claiming  an  interest  adverse  to 
plaintiff  to  be  made  a  defendant.  Carnes 
v.  Dalton,  1:207,  —  Or.  — ,  110  Pac. 
170. 

DRAINAGE. 

Duties  of  railroad  as  to  drainage  of 
surface   water,    see   Railroads,  _  1,   2. 

Levy  of  assessment  against  subsidiary 
railroad  companies,  see  Railroads,  o. 

Historical. 

1.  History    of    the    establishment 

and  development  of  reclamation  or  drain- 
age districts  in  California.  People  ex 
rel.  Chapman  v.  Sacramento  Drainage 
District,  1:107,  155  Cal.  373,  103  Pac. 
207. 


Index  to  Cases. 


789 


Status  of  District  as  Corporation. 

2.  A  reclamation  district  is  not 
a  municipal  corporation  or  a  corporation 
for  municipal  purposes  within  the  pro- 
hibition of  article  1,  section  11,  nor 
article  2,  section  6,  of  the  Constitution, 
but  is  a  governmental  agency  to  carry 
out  a  specific  public  purpose.  People 
ex  rel.  Chapman  v.  Sacramento  Drain- 
age District,  1:107,  155  Cal.  373,  103 
Pac.   207.      (Annotated) 

Constitutionality    of    Statutes. 

3.  A  statute  authorizing  the 
board  of  supervisors  of  a  county  to 
create  a  drainage  district,  appoint  com- 
missioners to  classify  the  lands  benefited, 
and  assess  the  benefits,  giving  the  owners 
notice  of  the  time  and  place  for  hearing 
the  report,  after  which  levies  are  to  be 
made  to  pay  expenses,  is  consistent  with 
the  Constitution  of  Illinois.  Chicago,  B. 
&  Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  1:459,  170  Fed.  665. 
(Annotated) 

4.  A  statute  providing  that  a 
railroad  company  shall  make  a  ditch  or 
channel  determined  upon  for  drainage 
purposes  across  its  right  of  way,  the 
expense  thereof  being  allowed  the  com- 
pany as  its  damages,  but  that  it  shall 
be  allowed  no  damage  on  account  of 
bridges  which  it  might  be  compelled  to 
build,  is  not  unconstitutional.  Chicago, 
B.  &  Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  1:459,  170  Fed.  665. 

5.  Statute  of  1905  (Sess.  Laws 
443,  Hon.  G.  L.,  p.  374),  creating  the 
Sacramento  Drainage  District,  contain- 
ing lands  situated  in  ten  different  coun- 
ties, for  the  purpose  of  promoting  drain- 
age therein,  providing  for  the  election 
of  commissioners  with  various  duties 
and  powers,  for  the  levying  of  assess- 
ments on  lands  benefited  to  pay  the  cost 
of  the  reclamation  thereof,  and  creating 
a  board  of  river  control  with  powers  for 
straightening  and  controlling  the  Sac- 
ramento and  San  Joaquin  Rivers,  is  not 
unconstitutional.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,   155  Cal.  373,  103  Pac.  207. 

6.  Provisions  of  the  Illinois 
Drainage  Act,  providing  for  the  assess- 
ment of  damages  by  a  jury  or  by  com- 
missioners, are  unconstitutional  and 
void.  Hull  v.  Sangamon  River  Drainage 
District,  1:593,  219  111.  454,  76  N.  E. 
701. 

7.  The  creation  of  a  board  of 
drainage  commissioners,  with  quasi  ju- 
dicial powers,  that  is,  to  hear  and  de- 
termine   objections    to    and    to    equalize 


assessments,  is  not  unconstitutional. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  1:107,  155  Cal.  373, 
103    Pac.    207. 

8.  Obligation  of  contract  is  not 
impaired  by  a  state  changing  its  plans 
for  the  reclamation  of  overflowed  lands, 
and  creating  new  and  different  agents 
and  mandatories.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,   155  Cal.  373,   103  Pac.  207. 

9.  A  property  qualification  in 
order  to  be  a  voter  at  elections  in  drain- 
age or  reclamation  districts  does  not  vio- 
late a  constitutional  inhibition  against 
requiring  a  property  qualification  for 
voters.  The  legislature  permits  the  land- 
owners to  appoint  their  own  agents, 
and  the  method  which  it  imposes  in  mak- 
ing the  selection  is  wholly  within  its 
own  control.  People  ex  rel.  Chapman  v. 
Sacramento  Drainage  District,  1:107, 
155  Cal.  373,   103   Pac.  207. 

Due  Process  of  Law. 

10.  Under  a  statute  providing 
that  lands  may  be  added  to  a  drainage 
district  and  taxed  for  drainage  purposes, 
with  no  provision  for  notice  to  the  own- 
ers thereof,  the  lands  will  be  taken  with- 
out due  process  of  law.  Ross  v.  Board 
of  Supervisors  of  Wright  County, 
1:358,  128  Iowa  427,  104  N.  W.  506,  1 
L.   R.   A.    (N.   S.)    431.      (Annotated) 

11.  A  drainage  statute  which 
provides  for  notice  to  the  property- 
owner  at  some  stage  of  the  proceedings 
before  an  assessment  is  made,  is  not 
open  to  constitutional  objection  simply 
because  it  does  not  provide  for  a  new 
or  additional  notice  of  each  successive 
step  leading  up  to  the  assessment.  Ross 
v.  Board  of  Supervisors  of  Wright 
County,  1:358,  128  Iowa  427,  104  N.  W. 
506,  1  L.  R.  A.  (N.  S.)  431.  (Anno- 
tated) 

12.  The  provision  of  law  that 
when  a  proceeding  for  establishing  a 
drainage  district  has  reached  the  stage 
where  it  is  proposed  to  levy  a  tax,  notice 
must  be  given  the  property-owners,  is 
sufficient  to  avoid  the  constitutional  ob- 
jection against  taking  property  without 
due  process  of  law,  although  no  notice 
is  required  of  the  creation  of  the  district 
or  the  determination  of  the  aggregate 
amount  of  the  tax  to  be  collected.  Ross 
v.  Board  of  Supervisors  of  Wright  Coun- 
ty, 1:358,  128  Iowa  427,  104  N.  W.  506, 
1  L.  R.  A.    (N.  S.)    431. 

13.  Failure  to  provide  for  ap- 
peal from  decisions  of  the  board  of  su- 
pervisors   creating    a    drainage    district, 


790 


Water  and  Mineral  Cases. 


does  not  render  the  law  unconstitutional 
when  the  parties  affected  have  ample 
opportunity  to  be  heard  before  the  board. 
Denial  of  the  right  to  an  appeal  from 
one  court  to  another  is  not  of  itself  a 
denial  of  due  process  of  law.  Ross  v. 
Board  of  Supervisors  of  Wright  County, 
1:358,  128  Iowa  427,  104  N.  W.  506,  1 
L.  R.  A.    (N.   S.)    431.      (Annotated) 

14.  The  act  providing  for  add- 
ing lands  "in  the  vicinity"  to  a  drainage 
district  without  provision  for  notice  to 
the  owners  thereof  is  void  as  a  taking  of 
the  property  added  without  due  process 
of  law,  and  void  as  to  others  to  whom 
notice  is  given  where  the  taking  of  the 
lands  "in  the  vicinity"  is  such  an  essen- 
tial feature  of  the  scheme  or  plan  sought 
to  be  effected  that  its  elimination  would 
lead  to  results  not  contemplated  by  the 
legislature.  Ross  v.  Board  of  Supervis- 
ors of  Wright  County,  1:358,  128  Iowa 
427,  104  N.  W.  506,  1  L.  R.  A.  (N.  S.) 
431.      (Annotated) 

15.  Where  an  opportunity  to  be 
heard  either  before  or  after  the  levying 
of  the  assessment  is  given,  there  is  no 
taking  of  property  without  due  process 
of  law.  People  ex  rel.  Chapman  v. 
Sacramento  Drainage  District,  1:107, 
155  Cal.  373,   103  Pac.  207. 

Curative    Statutes. 

16.  Where  an  act  for  the  forma- 
tion of  drainage  districts  provides  for 
proceedings  valid  to  a  certain  point,  and 
void  beyond  that  for  want  of  provision 
for  notice,  the  legislature  may,  by  an 
amended  act,  cure  the  defect  and  vali- 
date the  proceedings  taken  up  to  the 
point  where  the  invalidity  occurred.  Ross 
v.  Board  of  Supervisors  of  Wright  Coun- 
ty, 1:358,  128  Iowa  427,  104  N.  W.  506, 
1  L.  R.  A.    (N.  S.)    431. 

17.  The  legislature  has  power  by 
retroactive  statute,  to  provide  for  no- 
tice to  property  owners  whose  lands  were 
included  in  a  drainage  district,  but  who 
under  the  original  statute  were  not  en- 
titled to  notice  by  reason  of  which  fact 
the  original  act  was  unconstitutional. 
Ross  v.  Board  of  Supervisors  of  Wright 
County,  1  :358,  128  Iowa  427,  104  N.  W. 
506,  1  L.  R.  A.   (N.  S.)    431. 

Powers  of   Legislature. 

18.  The  legislature  has  the 
power  to  provide  for  the  reclamation  of 
overflowed  land  and  to  impose  a  tax 
thereupon  in  proportion  to  the  esti- 
mated special  benefits  which  those  lands 
will  receive  from  the  work  done.  "People 
ex  rel.  Chapman  v.  Sacramento  Drainage 
District,  1:107,  155  Cal.  373,  103  Pac. 
207. 


19.  To  su-tain  such  law  it  must 
appear  that  the  character  of  the  work 
is  such  that  its  performance  confers 
some  general  benefit  on  the  public  as 
well  as  a  private  benefit  on  the  land- 
owner. People  ex  rel.  Chapman  v.  Sac- 
ramento Drainage  District,  1:107,  155 
Cal.   373,   103   Pac.   207. 

20.  The  legislature,  having  due 
regard  to  vested  rights,  may  put  all 
existing  drainage  or  reclamation  dis- 
tricts out  of  existence  and  create  a  board 
to  manage  all  further  reclamation. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  1:107,  155  Cal.  373, 
103   Pac.   207. 

21.  The  legislature  has  power  to 
fix  a  district  for  the  drainage  or  recla- 
mation of  lands,  without  any  hearing  as 
to  benefits,  for  the  purpose  of  assessing 
upon  the  lands  within  the  district  the 
cost  of  a  local  public  improvement. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  1:107,  155  Cal.  373, 
103   Pac.   207. 

22.  Whatever  promotes  the  pub- 
lic health,  safety,  convenience,  and  wel- 
fare, limited  to  certain  lines,  is  an  ex- 
ercise of  the  police  power  for  which 
property  can  be  taken  without  compen- 
sation, and  expense  and  burdens  be  im- 
posed without  allowance  of  the  equiva- 
lent by  way  of  damages.  Chicago,  B. 
&  Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  1:459,  170  Fed.  665. 

23.  The  legislature  of  the  state 
has  jurisdiction  over  all  overflowed  lands 
in  the  state  whether  acquired  under  the 
Arkansas  Act  or  by  Spanish  or  Mexican 
grant.  People  ex  rel.  Chapman  v.  Sac- 
ramento Drainage  District,  1:107,  155 
Cal.  373,   103  Pac.  207. 

Judicial    Control. 

24.  Findings  of  a  board  of  su- 
pervisors as  to  the  necessity  for  a  new 
channel  for  a  stream  for  purposes  of 
drainage,  to  the  end  that  the  public 
health,  convenience,  and  welfare  would 
be  promoted,  and  as  to  the  location,  ben- 
efits, and  depth  and  breadth  of  the  new 
channel,  are  findings  of  fact  with  which 
the  courts  have  nothing  to  do.  Chicago, 
B.  &  Q.  R.  Co.  v.  Board  of  Supervisors 
of  Appanoose  County,  1:459,  170  Fed. 
665. 

Establishment  of   Districts. 

Qualification   of   Petitioners. 

25.  Where  a  deed  is  signed  and 
placed  in  escrow,  the  grantor  is  a  proper 
party  to  sign  a  petition  for  a  drainage 
district    until    such    time    as    the    deed 


Index  to  Cases. 


791 


takes  effect.  Hull  v.  Sangamon  River 
Drainage  District,  1:593,219  111.454, 
76  N.  E.  701. 

26.  A  tenant  for  life  who  has 
also  a  contingent  fee,  together  with 
children  having  a  contingent  remainder, 
are  proper  parties  to  sign  petition  for 
a  drainage  district.  Hull  v.  Sangamon 
River  Drainage  District,  1:593,  219  111. 
454,   76   N.   E.   701. 

27.  The  drainage  statute  does 
not  provide  that  petitioners  should  re- 
Bide  near  the  land  proposed  to  be  im- 
proved or  be  interested  in  the  proposed 
improvement,  but  only  that  one  hundred 
legal  voters  of  the  county  should  sign 
the  petition  in  order  to  set  the  machin- 
ery of  the  law  in  motion.  Seibert  v. 
Lovell  et  al.,  1:261,  92  Iowa  507,  61 
N.  W.  197. 

Withdrawal   of   Petitioners. 

28.  The  jurisdiction  of  a  board 
of  supervisors  to  establish  a  drainage 
district  vests  upon  the  filing  of  the  peti- 
tion, and  this  cannot  be  ousted  by  at- 
tempted withdrawal  of  the  petition  after 
it  is  filed.  Seibert  v.  Lovell  et  al., 
1:261,  92  Iowa  507,  61  N.  W.  197.. 
(Annotated) 

Notice. 

29.  The  division  by  the  state  of 
a  part  of  its  territory  into  districts  for 
taxation  for  public  improvements  is  a 
legislative  matter,  and  the  citizen  af- 
fected thereby  is  not  entitled  to  notice 
of  the  exercise  of  the  power.  Ross  v. 
Board  of  Supervisors  of  Wright  County, 
1:358,  128  Iowa  427,  104  N.  W.  506, 
1   L.   R.   A.    (N.    S.)    431. 

Objections. 

30.  As  a  general  proposition,  no 
one  is  entitled  to  raise  the  objection 
that  provision  for  notice  to  the  inter- 
ested parties  is  not  made  in  a  drainage 
statute  except  the  parties  entitled  to 
the  notice.  Ross  v.  Board  of  Supervis- 
ors of  Wright  Countv,  1:358,  128  Iowa 
427,  104  N.  W.  506,  *1  L.  R.  A.  (N.  S.) 
431. 

31.  A  landowner  who  did  not  re- 
ceive notice  of  the  organization  of  a 
drainage  district,  but  who  voluntarily 
appeared  in  the  proceedings  for  prose- 
cution and  allowance  of  claims  for  dam- 
ages, waives  the  objection  of  failure  of 
notice.  Ross  v.  Board  of  Supervisors 
of  Wright  County,  1:358,  128  Iowa  427, 
104  N.  W.  506,  1  L.  R.  A.  (X.  S.) 
431. 


Change  of  Boundaries. 

32.  Commissioners  may  change 
boundaries  of  a  district  from  those  given 
in  the  petition,  provided  petitioners  rep- 
resent a  majority  of  the  adult  land- 
owners of  the  land  therein  situated  and 
representing  one-third  of  the  area.  Hull 
v.  Sangamon  River  Drainage  District, 
1:593,  219  111.  454,  76  N.  E.  701. 
(Annotated) 

Commissioners. 

33.  Owning  property  within  the 
district  is  not  such  an  interest  as  dis- 
qualifies one  from  acting  as  commis- 
sioner of  the  district.  People  ex:  rel. 
Chapman  v.  Sacramento  Drainage  Dis- 
trict, 1:107,  155  Cal.  373,  103  Pac.  207. 

Assessments. 

34.  In  the  matter  of  governmental 
power  and  control,  the  water  highways 
of  the  state  do  not  differ  from  the  land 
highways,  and  legislation  which  exacts 
contributions  from  lands  adjacent  to  the 
inland  waterways  stands  upon  the  same 
ground  as  that  which  exacts  similar  con- 
tributions for  land  highways.  People  ex 
rel.  Chapman  v.  Sacramento  Drainage 
District,  1:107,  155  Cal.  373,  103  Pac. 
207. 

35.  The  assessment  for  drainage 
may  be  made  when  the  contract  is  let 
or  the  amount  for  which  the  drainage 
district  is  to  be  made  liable  is  approxi- 
mately ascertained,  and  need  not  be  de- 
layed until  the  work  is  completed.  Ross 
v.  Board  of  Supervisors  of  Wright  Coun- 
tv, 1:358,  128  Iowa  427,  104  N.  W.  506, 
1  L.  R.  A.    (N.  S.)    431. 

36.  The  drainage  of  swampy, 
marshy,  and  overflowed  lands  is  a  mat- 
ter of  public  health,  convenience,  and 
welfare  for  which  the  legislature  may 
provide,  and  distribute  the  expense* 
among  those  who  will  be  benefited  as 
much  or  more  than  the  amount  assessed 
against  them.  Chicago,  B.  &  Q.  R.  Co. 
v.  Board  of  Supervisors  of  Appanoose 
County,  1:459,  170  Fed.  665.  (Anno- 
tated)' 

37.  The  finding  of  a  board  of 
supervisors  that  a  new  channel  for  a 
stream  is  necessary  for  purposes  of 
drainage,  which  compels  a  railroad  com- 
pany to  erect  a  new  bridge  within  a  mile 
of  an  old  one,  and  assessing  $10,000 
for  benefits  from  the  drainage  cannot, 
considered  on  the  evidence,  be  held  void. 
Chicago,  B.  &  Q.  R.  Co.  v.  Board  of 
Sunervisors  of  Appanoose  County, 
1:45  9,   170  Fed.   665. 


792 


Water  and  Mineral.  Cases. 


38.  If  the  owner  makes  no  claim 
for  damages  to  land  no  part  of  which 
is  taken  in  excess  of  benefits,  commis- 
sioners may  assess  such  benefits.  Hull 
v.  Sangamon  River  Drainage  District, 
1:593,   219   111.   454,   76  N.   E.   701. 

39.  Where  a  jury  in  eminent  do- 
main proceedings  has  found  there  were 
no  damages  to  the  land  not  taken,  a  ver- 
dict is  not  conclusive  that  there  were  no 
benefits.  Hull  v.  Sangamon  River  Drain- 
age District,  1:593,  219  111.  454,  76 
N.  E.  701. 

40.  It  is  only  where  no  part  of 
the  land  is  taken,  and  the  owner  makes 
no  claim  for  damages  in  excess  of  bene- 
fits, that  assessment  for  benefits  can  be 
made  by  drainage  commissioners.  Hull 
v.  Sangamon  River  Drainage  District, 
1:593,  219  111.  454,  76  N.  E.  701. 

Damages. 

41.  Compensation  to  be  paid  for 
land  actually  taken  and  damages  to  land 
not  taken  can  only  be  determined  by  a 
jury,  and  after  determining  the  just 
compensation  for  the  land  taken,  the 
jury  can  only  determine  whether  there 
is  any  damage  to  the  lands  not  taken 
or  how  much  the  damage  is  by  taking 
into  account  special  benefits  to  the  land. 
Hull  v.  Sangamon  River  Drainage  Dis- 
trict, 1:593,  219  111.  454,  76  N.  E. 
701. 

42.  On  the  question  of  damages 
to  lands  not  taken,  the  jury  is  bound 
to  consider  the  effect  of  the  improve- 
ment upon  the  land,  both  advantages 
and  disadvantages,  and  for  the  purpose 
of  reducing  or  balancing  damages,  de- 
fendant would  necessarily  take  into  ac- 
count any  special  benefits.  Hull  v. 
Sangamon  River  Drainage  District, 
1:593,  219  111.  454,  76  N.  E.  701. 

43.  Such  is  not  assessing  bene- 
fits to  the  land,  but  merely  ascertain- 
ing whether  there  is  damage  or  not. 
Hull  v.  Sangamon  River  Drainage  Dis- 
trict,  1:593,  219  111.  454,  76  N.  E.  701. 

44.  Commissioners  cannot  sup- 
plant a  jury  in  determination  of  the 
question  of  damages,  one  of  the  ques- 
tions necessarily  involved  in  a  proceed- 
ing under  the  Eminent  Domain  Act. 
Hull  v.  Sangamon  River  Drainage  Dis- 
trict, 1:593,  219  111.  454,  76  N.  .E.  701. 

45.  If  commissioners  can  make 
an  assessment  of  benefits  to  land  a  part 
of  which  is  taken  for  public  improve- 
ment, they  can  finally  and  conclusively 
determine  a  question  which  the  owner 
has  a  constitutional   right  to  have  sub- 


mitted to  a  jury.  Hull  v.  Sangamon 
River  Drainage  District,  1:593,  219  111. 
454,   76  N.  E.  701. 

ELECTIONS. 

Validity  of  property  qualification,  see 
Constitutional    Law,    12. 

EMINENT   DOMAIN. 

Constitutionality  of  a  statute  permit- 
ting assessment  of  damages  by  com- 
missioners, see  Drainage,  6. 

ENGINEER. 

Powers  and  duties  of  territorial  engi- 
neer as  to  appropriation  of  water, 
see  Appropriation,  5-12. 

ENTRY. 

See  Public  Lands. 

EQUITY. 

Jurisdiction  of  accounting  for  waste, 
see  Accounting. 

ESTOPPEL. 

Necessity  of  pleading  facts,  see  Plead- 
ing,   3. 

By   Deed. 

1.  One  conveying  land  with  cove- 
nants of  special  warranty  is  estopped  to 
set  up  any  rights  of  ownership  by  vir- 
tue of  a  reservation  in  a  former  deed. 
Shaw  v.  Caldwell  et  al.,  1:558,  —  Cal. 
— ,   115   Pac.   941. 

2.  The  grantee  of  one  who  has 
conveyed  all  his  riparian  and  water 
rights  to  a  third  party  is  bound  by  such 
conveyance,  and  is  estopped  from  assert- 
ing any  rights  in  conflict  with  the 
rights  so  conveyed.  Duckworth  et  al.  v. 
Watsonville  Water  &  Light  Co.  et  al., 
1:128,  158  Cal.  206,  110  Pac.  927. 

3.  By  conveyance  of  all  his  water 
rights,  riparian  owner  is  absolutely 
estopped  to  use  any  part  of  water  on 
land  except  as  reserved  in  the  convey- 
ance. Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:128,  158 
Cal.   206,   110  Pac.   927. 

By  Acquiescence. 

4.  Failure  to  enjoin  or  prevent 
the  boring  of  a  well  on  its  right  of  way 
held  not  to  show  acquiescence  in  the 
claim  of  a  railroad  company  to  the  oil 
underneath  its  right  of  way.  Gladys 
City  Oil,  Gas  &  Manufacturing  Co.  et 
al.  v.  Right  of  Way  Oil  Co.  et  al., 
1:499,  _  Tex.  — ,  137  S.  W.  171. 


Index  to  Cakes. 


793 


5.  Long     continued     acquiescence 

in  the  possession  by  a  railway  company 
of  a  right  of  way  200  feet  wide  held  to 
estop  the  owner  of  the  fee  from  deny- 
ing the  claimed  width.  Gladys  City  Oil, 
Gas  &  Manufacturing  Co.  et  al.  v.  Right 
of  Way  Oil  Co.  et  al.,  1:499,  —  Tex. 
— ,  137  S.  W.  171. 

EVIDENCE. 

To    show    performance    of    assessment 

work,   see  Assessment  Work,  4. 
Burden  of  proof  of  fraud,  see  Fraud. 

Expert  and  Opinion. 

1.  Opinion  evidence  as  to  whether 
a  certain  Dody  of  water  was  or  was  not 
a  lake  is  inadmissible,  the  question  be- 
ing one  which  could  be  answered  by  any 
one  properly  informed  regarding  the  defi- 
nition of  a  lake  and  the  facts  and  con- 
ditions surrounding  the  water,  and 
therefore  not  a  subject  for  expert  testi- 
mony. Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:128,  158 
Cal.  206,   110  Pac.   927. 

2.  The  use  of  the  words  "to  my 
own  satisfaction"  indicates  a  conclusion 
by  the  witness,  and  his  testimony  is 
properly  excluded.  Morgan  v.  Myers, 
1:494,  —  Cal.  — ,    113  Pac.   153. 

Declarations   and    Admissions. 

3.  Admissions  by  a  prior  holder 
in  possession  are  competent  to  show  the 
nature  of  the  holdings  of  the  grantee. 
Morgan  v.  Myers,  1 :494,  —  Cal.  — ,113 
Pac.    153. 

4.  Declarations  of  a  former 
owner  are  admissible  against  a  sub- 
sequent holder  only  when  made  against 
interest  by  a  grantor  of  the  present 
holder  while  holding  the  title  in  contro- 
versy. Washoe  Copper  Co.  v.  Junila  et 
al.     (Hall    et    al.,    Interveners),    1:451, 

—  Mont.  — ,    115   Pac.   917. 

5.  Declarations  by  one  claiming 
under  a  placer  claim  and  a  quartz  loca- 
tion, whereby  he  acknowledges  the  ex- 
istence of  a  known  lode  upon  the  placer 
claim,  held  inadmissible  to  defeat  the 
record  title.  Washoe  Copper  Co.  v. 
Junila  et  al.  (Hall  et  al.,  Interveners), 
1:451,  —  Mont.  — ,  115  Pac.  917. 

Location    Certificate. 

6.  A  declaratory  statement  (lo- 
cation certificate)  which  does  not  con- 
tain an  affidavit  is  void,  and  the  receipt 
in  evidence  of  a  certified  copy  is  erro- 
neous. Washoe  Copper  Co.  v.  Junila  et 
al.     (Hall    et    al.,    Interveners),    1:451, 

—  Mont.  — ,  115  Pac.  917. 


7.  A  copy  of  a  declaratory  state- 
ment (location  certificate)  offered  to 
prove  the  extent  of  work  by  a  former 
claimant,  is  objectionable  as  not  the  best 
evidence.  Washoe  Copper  Co.  v.  Junila 
et  al.  (Hall  et  al.,  Interveners),  1:451, 
—  Mont.  — ,  115  Pac.  917. 

8.  In  an  action  to  determine  the 
rights  of  those  operating  on  a  lode  with- 
in a  placer  claim,  a  copy  of  the  declara- 
tory statement  of  a  prior  location,  since 
abandoned,  is  immaterial  and  inadmis- 
sible. Washoe  Copper  Co.  v.  Junila  et 
al.  (Hall  et  al.,  Interveners),  1:451,  — 
Mont.  — ,   115  Pac.  917. 

EXEMPTIONS. 

From  Taxation,  see  Taxation,  5,  6. 

EXPLORATION. 

Necessity  of  exploration  within  a  rea- 
sonable time,  see  Leases,  6. 

FIXTURES. 

Conditional    Sales. 

1.  Where  mill  is  sold  under  con- 
dition that  the  title  shall  not  pass  until 
fully  paid  for,  it  remains  personal  prop- 
erty as  between  the  seller  and  buyer 
although  it  be  affixed  to  the  realty. 
Washburn  v.  Inter-Mountain  Mining  Co., 
1:90,  —  Or.  — ,  109  Pac.  382. 

2.  Mill  affixed  to  soil  under  con- 
ditional sale  is,  as  to  third  parties  with- 
out notice,  a  fixture  and  will  be  treated 
as  such  so  far  as  rights  of  third  parties 
are  concerned.  Washburn  v.  Inter- 
Mountain  Mining  Co.,  1:90,  —  Or.  — , 
109    Pac.    382. 

Removal. 

3.  Machinery  and  fixtures  placed 
on  real  estate  leased  for  the  purpose  of 
drilling  for  gas  and  oil  do  not  become 
permanent  fixtures  or  part  of  the  free- 
hold, and  the  title  thereto  does  not  vest 
in  the  lessor  upon  a  forfeiture  of  the 
lease.  Perry  v.  Acme  Oil  Company, 
1:99,  44  Ind.  App.  207,  88  N.  E.  859. 
(Annotated) 

4.  Where  the  right  to  remove 
property  "at  any  time"  has  been  ex- 
pressly reserved  in  an  oil  lease,  such 
right  is  not  unlimited  as  to  time,  but 
is  limited  to  a  reasonable  time  after 
the  expiration  of  the  lease.  Perry  v. 
Acme  Oil  Company,  1:99,  44  Ind.  App. 
207,  88  N.  E.  859. 


794 


Watek  axd  Mineral  Cases. 


FORFEITURE. 

Necessity    of     pleading    forfeiture    of 
claim,  see  Pleading,  4. 

Of   leases,   see  Leases,   9-12. 

FRAUD. 

Burden  of  Proof. 

One  alleging  fraudulent  conceal- 
ment in  a  contract,  has  the  burden  of 
showing  that  the  fact  concealed  was 
material  and  that  but  for  the  conceal- 
ment he  would  not  have  entered  into  the 
agreement.  Murray  v.  White  et  al., 
1:538,  —  Mont.  — ,  113  Pac.  754. 

GAS. 

Right  of  life  tenant  as  to  exploration 
for  oil  and  gas,  see  Life  Estates, 
1,  2. 

Construction  of  gas  leases,  see  Leases, 
2-5. 

HEAD    GATES. 

As  essential  to  appropriation,  see  Ap- 
propriation,   33. 

HOMESTEAD. 

Entry  on   for  exploration   for   oil,   see 

Oil   Claims,   2. 
Possession    as    essential    to    entry,    see 

Public   Lands,   2. 

INDIAN    RESERVATIONS. 

Appropriation  of  waters  on,  see  Ap- 
propriation, 22. 

INDICTMENTS. 

For  conspiracy,  see  Criminal  Law,  2,  3. 

INJUNCTIONS. 
Trial    of    Right   to    Possession. 

1.  One  claiming  the  right  to 
mine  coal  in  lands  held  as  to  title  and 
possession  by  another,  may  try  that 
right  by  bill  for  injunction  where  the 
record  shows  clearly  that  the  right  of 
trial  by  jury  was  not  infringed.  J.  R. 
Crowe  Coal  &  Mining  Co.  v.  Atkinson 
et  al.,   1:446,  —  Kan.  — ,  116  Pac.  499. 

Interference    with    Water. 

2.  In  action  by  reservoir  com- 
pany to  restrain  interference  with  its 
waters,  it  is  no  defense  that  a  large 
volume  of  water  existed  at  the  source 
of  supply  available  under  another  ap- 
propriation, to  part  of  which,  if  so  ap- 
propriated, defendants  would  be  entitled. 


Hackett  et  al.  v.  Larimer  &  Weld  Reser- 
voir Company,  1:224,  48  Colo.  178,  109 
Pac.    965. 

Oil    Well. 

3.  A  bill  to  quiet  title  alleging 
in  addition  that  the  defendants  have  en- 
tered upon  the  land  with  a  drilling  rig 
and  are  threatening  to  drill  for  oil,  is 
sufficient  to  warrant  a  temporary  in- 
junction against  such  trespass.  Risch 
et  al.  v.  Burch,  1:325,  —  Ind.  — ,  95 
X.   E.   123. 

4.  Statements  of  the  danger  of 
an  adjoining  operator's  bringing  in  a 
salt  water  well,  without  evidence  of  his 
lack  of  skill  or  knowledge  of  the  oil 
field,  held  insufficient  to  justify  a  tem- 
porarv  injunction.  Simms  v.  Reisner  et 
al..  1:238,  —  Tex.  Civ.  — ,  134  S.  W. 
278. 

Relocation. 

5.  Perpetual  injunction  held  to 
lie  against  one  attempting  to  locate  a 
claim  upon  an  existing  one.  Wheelden 
v.  Cranston,   1:659,   12  Brit.  Col.  489. 

Right   to   Temporary. 

6.  The  granting  of  a  temporary 
injunction  to  maintain  the  status  quo 
until  final  hearing,  rests  in  the  sound 
discretion  of  the  trial  court  and  will  be 
justified  where  the  evidence  shows  a  case 
worth  investigating.  Risch  et  al.  v. 
Burch,   1:325,  —  Ind.  — ,  95  N.  E.  123. 

Parties. 

7.  Appropriators  of  waters  of  a 
stream  above  the  land  of  parties  to  the 
action  are  not  necessary  parties  to  de- 
termine question  of  injunction  from  de- 
fendants wrongfullv  diverting  waters  to 
plaintiffs'  damage.  Beck  et  al.  v.  Bono 
et  al.,  1:222,  59  Wash.  479,  110  Pac. 
13. 

8.  Where  sole  question  was 
whether  plaintiff  or  defendant  owned 
certain  waters,  irrigation  company  hav- 
ing no  interest  in  the  ownership  thereof 
was  neither  proper  nor  necessary  party 
to  the  action.  Hackett  et  al.  v.  Larimer 
&  Weld  Reservoir  Company,  1:224,  48 
Colo.   178,  109  Pac.  965. 

Pleading. 

9.  In  action  to  restrain  defend- 
ants from  diverting  water  belonging  to 
plaintiff,  no  question  of  priority  of  ap- 
propriation being  involved,  priority  of 
rights  of  the  parties  by  appropriation 
need   not   be   alleged.     Hackett  et  al.   v. 


Index  to  Cases. 


795 


Larimer    &    Weld    Reservoir    Company, 
1:224,  48  Colo.  178,  109  Pac.  9G5. 

Decree. 

10.  Decree  is  not  objectionable  in 
enjoining  defendants  from  interfering 
with  head  gates  or  interfering  with  su- 
perintendent of  irrigation  company  in 
discharge  of  duties  at  certain  times,  for 
reason  that  irrigation  company  was  not 
a  party  to  the  action.  Hackett  et  al.  v. 
Larimer  &  Weld  Eeservoir  Company, 
1:224,  48  Colo.   178,   109  Pac.  965. 

Appeals   and    Errors. 

11.  On  apeal  from  an  interlocu- 
tory order  granting  a  temporary  injunc- 
tion, the  sufficiency  of  the  complaint  will 
not  be  subjected  to  any  technical  tests 
when  questioned  first  in  the  supreme 
court.  Risch  et  al.  v.  Burch,  1:325,  — 
Ind.  — ,  95  N.  E.   123. 

IRRIGATION. 

See   Ditches ;    Reservoirs. 

Power   to   issue   additional   bonds,   see 

Bonds,   2. 
Reasonableness   of   charges    for   water, 

see  Charges. 

IRRIGATION    DISTRICTS. 

Petition  for  Organization. 

1.  Section  2  of  the  Laws  of  1899, 
p.  408,  as  amended  by  Laws  1901,  p.  191, 
§  1,  requires  the  petition  for  the  organ- 
ization of  an  irrigation  district  to  de- 
scribe the  boundaries  of  such  district,  but 
does  not  require  the  petition  to  contain 
a  specific  and  accurate  description  of 
each  tract  or  legal  subdivision  of  land 
within  the  district.  Oregon  Short  Line 
Railroad  Company  v.  Pioneer  Irrigation 
District  et  al.,  1:1,  16  Idaho  578,  102 
Pac.  904. 

Notice. 

2.  Laws  1899,  p.  408,  §  2,  as 
amended  by  Laws  1801,  p.  191,  §  1,  does 
not  require  that  the  notice  given  of  the 
presentation  of  the  petition  or  the  notice 
of  the  time  when  the  same  will  be  heard 
contain  a  description  of  the  different 
tracts  or  legal  subdivisions  within  the 
1  oundaries  of  the  proposed  district. 
Oregon  Short  Line  Railroad  Company  v. 
Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,   102  Pac.  904. 

3.  The  fact  that  the  statute 
makes  no  provision  for  notice  to  the 
landowner  that  on  a  particular  day  the 
board  of  directors  will  assess  benefits  to 


the  lands  within  the  district  will  not 
render  such  statute  unconstitutional, 
where  the  statute  does  provide  for  no- 
tice to  be  given  of  the  proceedings  to 
organize  such  district  and  notice  of  the 
hearing  for  the  confirmation  of  the  or- 
ganization and  proceedings,  of  such  dis- 
trict, at  which  hearing  the  court  is  re- 
quired to  examine  all  the  proceedings 
involved  in  the  organization  of  such  dis- 
trict including  the  assessment  of  bene- 
fits. Oregon  Short  Line  Railroad  Com- 
pany v.  Pioneer  Irrigation  District  et 
al.,   1:1,   16   Idaho  578,   102  Pac.  904. 

Boundaries. 

4.  The  statute  of  California  au- 
thorizes the  board  of  county  commis- 
sioners to  include  within  the  boundaries 
of  an  irrigation  district  all  lands  which 
in  their  natural  state  would  oe  benefited 
by  irrigation  and  are  susceptible  of  irri- 
gation by  one  system;  and  this  is  true 
regardless  of  the  question  as  to  what 
particular  use  is  being  made  of  any  par- 
ticular tract  or  piece  of  land  at  the  time 
the  district  is  organized.  Oregon  Short 
Line  Railroad  Company  v.  Pioneer  Irri- 
gation District  et  al.,  1:1,  16  Idaho  578,. 
102   Pac.    904.      (Annotated) 

5.  Where  it  appears  that  an  irri- 
gation district  has  attempted  to  change 
the  boundaries  of  such  district  so  as  to 
include  other  territory,  but  has  failed  to 
give  the  notice  required  by  the  statute 
of  the  intention  of  such  district  to 
change  such  boundaries,  and  the  owners 
of  land  attempted  to  be  taken  into  such 
district  have  no  notice  of  the  change  in 
boundaries  and  the  inclusion  of  such 
land  within  the  district,  such  owners 
are  not  prevented  from  challenging  the 
legality  of  the  change  in  the  boundaries 
of  such  district  until  they  have  had  their 
day  in  court.  (Sullivan.  C.  J.,  dissent- 
ing in  part.)  Oregon  Short  Line  Rail- 
road Company  v.  Pioneer  Irrigation  Dis- 
trict et  al.,  1:1,  16  Idaho  578,  102  Pac. 
904. 

Assessments. 

Property  Subject. 

6.  Where  territory  has  not  been 
included  within  the  boundaries  of  an 
irrigation  district  in  accordance  with 
the  laws  governing  the  taking  of  terri- 
tory into  an  irrigation  dstrict,  the  dis- 
trict has  no  power  or  jurisdiction  ta 
assess  the  property  so  included.  Ore- 
gon Short  Line  Railroad  Company  v. 
Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,  102  Pac.  904. 


796 


Watek  and  Mineeal  Cases. 


7.  In  determining  whether  lands 
will  be  benefited  by  a  system  of  irriga- 
tion works,  the  board  of  county  commis- 
sioners is  not  limited  to  lands  which 
will  be  used  for  agricultural  purposes 
or  upon  which  water  will  be  beneficially 
used,  or  to  lands  devoted  to  any  par- 
ticular use;  but  the  board  is  empow- 
ered and  given  jurisdiction  to  determine 
whether  all  lands  within  the  district 
will  be  benefited,  without  reference  to 
the  use  to  which  the  same  will  be  put. 
Oregon  Short  Line  Railroad  Company 
v.  Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,   102  Pac.  904. 

Sufficiency    Generally. 

8.  If  the  records  show  that  the 
board  of  directors,  in  levying  an  assess- 
ment for  maintenance  and  to  pay  the 
bonded  indebtedness  of  an  irrigation  dis- 
trict, substantially  complied  with  the 
statute,  and  the  assessment  roll  is  made 
up  in  substantial  compliance  with  the 
statute,  the  assessment  thus  levied  will 
be  upheld  if  the  description  of  the  prop- 
erty is  sufficient  to  give  the  landowner 
notice  that  such  property  is  burdened 
with  such  assessment.  Oregon  Short 
Line  Railroad  Company  v.  Pioneer  Irri- 
gation District  et  al.,  1:1,  16  Idaho  578, 
102  Pac.  904. 

Determination   of    Benefits. 

9.  Section  11  of  the  act  (Laws 
1899,  p.  414),  as  amended  by  Act  March 
18.  1901  (Laws  1901,  p.  104,  §  2).  re- 
quires the  board  to  examine  all  tracts 
and  legal  subdivisions  within  the  boun- 
daries of  the  district,  and  to  apportion 
the  benefits  according  to  their  judgment. 
Oregon  Short  Line  Railroad  Company  v. 
Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,   102  Pac.  904. 

Description    of   Tracts. 

10.  This  provision  of  the  statute, 
which  requires  the  board  to  examine 
each  particular  legal  subdivision  or  tract 
within  the  district  and  apportion  the 
benefits,  does  not  require  the  board,  in 
designating  the  benefits,  to  particularly 
and  specifically  describe  each  tract  or 
fractional  part  of  such  legal  subdivision 
according  to  the  separate  ownership 
thereof  where  the  benefits  accruing  to  all 
parts  of  such  legal  subdivision  are  the 
same.  Oregon  Short  Line  Railroad  Com- 
pany v.  Pioneer  Irrigation  District  et 
al.,   1:1,   16   Idaho  578,   102  Pac.  904. 

11.  If,  however,  in  assessing  the 
benefits,    the   board   determine   that   any 


part  or  tract  less  than  a  legal  subdivis- 
ion be  benefited  differently  from  the  re- 
mainder or  any  other  part  or  tract,  then 
the  board  is  required  to  designate  and 
describe  the  benefit  to  such  particular 
tract  or  fractional  part.  Oregon  Short 
Line  Railroad  Company  v.  Pioneer  Irri- 
gation District  et  al.,  1:1,  16  Idaho  57S, 
102   Pac.   904. 

12.  The  statute  requires  the 
board  to  assess  benefits  against  each 
legal  subdivision  or  tract  within  the  dis- 
trict, and  where  less  than  a  legal  sub- 
division is  benefited  in  a  different  degree 
or  amount  than  the  remainder  of  the 
legal  subdivision  or  tract,  then  the  board 
is  required  to  fix  and  determine  the 
benefits  accruing  to  such  particular 
tract;  but  where  the  entire  legal  sub- 
division or  tract  is  benefited  equally, 
then  the  board  may  lay  the  assessment 
against  the  legal  subdivision,  and  thus 
include  the  smaller  or  fractional  parts 
thereof.  Oregon  Short  Line  Railroad 
Company  v.  Pioneer  Irrigation  District 
et  al.,   1:1,   16  Idaho  578,   102  Pac.  904. 

Listing  According  to  Ownership. 

13.  The  fact  that  the  board  of 
directors  in  assessing  benefits  to  lands 
within  an  irrigation  district,  fail  to  list 
the  lands  according  to  each  separate 
ownership,  but  do  list  the  same  accord- 
ing to  each  legal  subdivision,  does  not 
show  that  the  board  did  not  intend  to 
assess  benefits  to  all  of  the  lands  within 
the  legal  subdivision.  Oregon  Short  Line 
Railroad  Company  v.  Pioneer  Irrigation 
District  et  al.,  1:1,  16  Idaho  578,  102 
Pac.  904. 

Failure   to    Include    Property. 

14.  The  fact  that  the  officials  of 
an  irrigation  district  neglect  to  assess 
the  right  of  way  and  station  grounds  of 
a  railroad  company  for  certain  years  is 
not  a  reason  why  such  right  of  way 
and  station  grounds  are  not  subject  to 
assessment  by  said  district;  and  the  com- 
pany cannot  defeat  a  future  assessment 
by  reason  of  the  fact  that  its  property 
was  not  assessed  for  any  particular  year 
or  years  prior  to  the  assessment  made. 
Oregon  Short  Line  Railroad  Company 
v.  Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,  102  Pac.  904. 

Confirmation. 

15.  Section  19,  Laws  1899,  p. 
418,  empowers  the  district  court  upon 
the  hearing  for  confirmation,  to  deter- 
mine the   legality   and   regularity  of   all 


Index  to  Cases. 


797 


the  proceedings  taken  with  reference  to 
the  organization  of  said  district  and  by 
such  district  up  to  the  time  the  judgment 
of  confirmation  is  rendered,  including  all 
proceedings  affecting  the  legality  or 
validity  of  the  bonds  issued  by  said  dis- 
trict, and  the  apportionment  of  costs  and 
the  lists  of  such  apportionment;  and 
every  person  interested  in  said  district 
is  given  an  opportunity  to  appear  and 
contest  the  same.  Oregon  Short  Line 
Railroad  Company  v.  Pioneer  Irrigation 
District  et  al.,  1:1,  16  Idaho  578,  102 
Pac.  904. 

1G.  Section  2  of  the  Act  of  March 

18,  1901  (Laws  of  1901,  p.  194),  amend- 
ing the  Laws  of  1899  (Laws  1899,  p. 
414,  §  11),  expressly  provides  that  '"The 
proceedings  of  said  board  of  directors 
in  making  such  apportionment  of  cost, 
and  the  said  list  of  such  apportionment, 
shall  be  included,  with  other  features  of 
the  organization  of  such  district  which 
are  subject  to  judicial  examination  and 
confirmation,  as  provided  in  sections  six- 
teen, seventeen,  eighteen,  nineteen  and 
twenty  of  this  act."  Oregon  Short  Line 
Railroad  Company  v.  Pioneer  Irrigation 
District  et  al.,  1:1,  16  Idaho  578,  102 
Pac.   904. 

— i —  Collateral   Attack. 

17.  Where  a  railroad  corporation 
owns  right  of  way  and  station  grounds 
within  the  boundaries  of  a  proposed  irri- 
gation district,  and  quietly  sits  by  and 
makes  no  objection  or  protest  to  the 
organization  of  such  district  or  the  con- 
firmation of  the  same,  such  railroad 
company  is  concluded  by  the  action  of 
the  board  of  county  commissioners  in 
including  such  right  of  way  and  station 
grounds  within  the  district  and  by  the 
judgment  of  the  district  court  confirm- 
ing such  district,  and  cannot  attack  the 
jurisdiction  of  the  district  to  assess  such 
lands  on  the  ground  that  the  same  were 
not  benefited,  in  a  collateral  proceeding 
(following  Knowles  v.  New  Sweden 
Irrigation  District,  16  Idaho  217,  101 
Pac.  81).  Oregon  Short  Line  Railroad 
Company  v.  Pioneer  Irrigation  District 
et  al.,   1:1,   16  Idaho  578,  102  Pac.  904. 

18.  Whether  the  right  of  way 
and  station  grounds  of  a  railroad  com- 
pany will  be  benefited  by  a  system  of 
irrigation  works  within  an  irrigation 
district  is  committed  to  the  judgment  of 
the  board  of  county  commissioners;  and 
when  such  board  has  determined  that 
such  land  will  be  benefited,  and  includes 
such  land  within  the  boundaries  of  such 
district,    the    action    of    such    board    is 


final  and  conclusive  against  a  collateral 
attack.  Oregon  Short  Line  Railroad 
Company  v.  Pioneer  Irrigation  District 
et  al.,   1:1,  16  Idaho  578,  102  Pac.  904. 

Railroad  Property. 

19.  The  mere  fact  that  the  rail- 
road company  for  the  time  being  is  using 
its  land  for  right  of  way  and  depot  pur- 
poses is  not  a  reason  why  such  land 
will  not  be  benefited  by  a  system  of 
irrigation  works  controlled  by  an  irri- 
gation district,  as  the  question  of  bene- 
fits is  to  be  determined  with  reference  to 
the  natural  state  and  condition  of  the 
land  and  not  with  reference  to  the  use 
being  made  of  such  land.  Oregon  Short 
Line  Railroad  Company  v.  Pioneer  Irri- 
gation District  et  al.,  1:1,  16  Idaho  578, 
102  Pac.  904. 

20.  The  benefits  fixed  by  the 
board  are  laid  against  the  land,  the 
proceeding  is  a  proceeding  in  rem,  and 
the  benefits  have  reference  to  the  land ; 
and  where  the  board  in  preparing  a  list 
of  the  lands  against  which  benefits  are 
laid,  designates  upon  such  list  the  legal 
subdivisions  across  which  the  right  of 
way  of  a  railroad  company  passes,  and 
designates  the  rate  per  acre  apportioned 
to  each  legal  subdivision,  it  is  a  substan- 
tial compliance  with  the  statute,  and  is 
not  void  because  the  right  of  way  is  not 
particularly  and  separately  described. 
Oregon  Short  Line  Railroad  Company  v. 
Pioneer  Irrigation  District  et  al.,  1:1, 
16  Idaho  578,  102  Pac.  904. 

21.  The  list  thus  prepared  is 
notice  to  the  railway  company  of  the 
benefits  assessed  against  each  legal  sub- 
division, of  which  its  right  of  way  is  a 
part ;  and  where  the  list  has  been  thus 
prepared,  and  no  objection  is  made  by 
the  company  on  account  of  a  defective 
description  or  want  of  description  at  the 
time  of  the  hearing  of  the  confirmation 
of  said  district,  the  owner  of  such  prop- 
erty is  concluded  in  a  collateral  attack 
by  the  judgment.  Oregon  Short  Line 
Railroad  Company  v.  Pioneer  Irrigation 
District  et  al.,  1:1,  16  Idaho  578,  102 
Pac.  904. 

22.  The  power  and  jurisdiction 
of  the  state  board  of  equalization  with 
reference  to  the  assessment  of  railroad 
property  has  reference  to  assessments 
made  for  general  state,  county,  and  mu- 
nicipal purposes,  and  not  to  assessments 
made  for  local  improvements.  Oregon 
Short  Line  Railroad  Company  v.  Pioneer 
Irrigation  District  et  al.,  1:1,  16  Idaho 
57S,  102  Pac.  904. 


798 


Water  and  Mineral  Cases. 


INTERSTATE    COMMERCE. 
See  Constitutional  Law,  4,  5. 

JUDGMENTS. 

Parties  Affected. 

1.  Decree  in  action  to  determine 
interests  in  ditch  affects  only  parties  to 
that  action,  and  owners  of  other  inter- 
ests are  not  bound  thereby.  Carnes  v. 
Dalton,   1:207,  —  Or.  — ,  110  Pac.   170. 

2.  Plaintiff  is  not  bound  by 
allegations  in  the  pleadings  in  a  suit 
for  adjudication  of  water  rights  to  which 
it  was  not  a  party,  and  plaintiff  was  not 
required  to  intervene  therein.  Hackett 
et  al.  v.  Larimer  &  Weld  Reservoir  Com- 
pany 1:224,  48  Colo.  178,  109  Pac. 
965. 

3.  Plaintiff  is  not  bound  by  de- 
cree fixing  consumer's  rights  in  action 
between  him  and  irrigation  company,  to 
which  it  was  not  a  party,  and  decree 
therein  is  no  defense  in  action  by  plain- 
tiff to  restrain  diversion.  Hackett  et  al. 
v.  Larimer  &  Weld  Reservoir  Company, 
1 :224,  48  Colo.  178,  109  Pac.  965. 

JURY. 

Right    to    assessment    of    damages    by 
jury,   see  Constitutional   Law,    13. 

LEASES. 

Removal  of  fixtures,  see  Fixtures,  3,  4. 
Listing    for    taxation,    see    Taxation, 
1-3. 

Distinguished  from   License. 

1.  The  test  to  determine  whether 
an  agreement  is  a  lease  or  a  license  is 
whether  exclusive  possession  is  given 
against  all  the  world,  including  the 
owner,  or  whether  a  mere  privilege  to 
occupy  under  the  owner  is  conferred. 
Shaw  v.  Caldwell  et  al.,  1:558,  —  Cal. 
— ,   115  Pac.  941. 

Construction. 

2.  In  construing  an  oil  and  gas 
lease,  the  whole  instrument,  the  situ- 
ation of  the  parties,  and  the  subject- 
matter  of  the  contract  will  be  considered 
together.  Bellevue  Gas  &  Oil  Co.  v. 
Pennell,  1:396,  76  Kan.  785,  92  Pac. 
1101.      (Annotated) 

3.  A  contract  allowing  to  the 
plaintiff  one-tenth  portion  of  each  pros- 
pective  gas  well,  when  utilized  and  sold 
off  the  premises,  held  not  satisfied  by  an 


agreement  with  another  party  to  con- 
vey and  market  the  gas  for  50  per  cent. 
and  the  payment  of  5  per  cent,  to  the 
plaintiff.  Barton  et  al.  v.  Laclede  Oil 
&  Mining  Co.,  1:259,  —  Okla.  — ,  112 
Pac.  965. 

4.  A  provision  in  a  lease  "to  pipe 
gas  to  the  house  for  domestic  purposes 
as  soon  as  well  is  completed"  construed 
to  mean  without  charge  for  the  gas. 
Bellevue  Gas  &  Oil  Co.  v.  Pennell,  1 :396, 
76  Kan.  785,  92  Pac.  1101. 

5.  An  oil  and  gas  contract  pro- 
viding that  in  case  no  well  is  commenced 
within  120  days  the  grant  shall  become 
void  unless  the  operator  shall  pay  $20 
each  month  thereafter  delayed,  held  not 
to  constitute  a  lease  but  to  be  a  mere 
option  for  exploration,  subject  to  expira- 
tion upon  failure  to  pay  in  advance. 
Risch  et  al.  v.  Burch,  1:325,  —  Ind. 
— ,  95  N.  E.   123. 

6.  A  long  term  mineral  lease  is 
construed  to  imply  a  covenant  for  ex- 
ploration within  a  reasonable  time,  and 
continued  operation  thereafter,  notwith- 
standing an  express  provision  for  pros- 
pecting on  adjacent  territory  within  a 
year.  Mansfield  Gas  Co.  v.  Alexander, 
'1 :286,  —  Ark.  — ,  133  S.  W.  837. 

Certainty. 

7.  A  deed  to  prospect  for  oil  and 
gas  which  does  not  specifically  define  the 
land  granted  is  not  void  for  uncertainty, 
but  within  certain  limits  gives  the 
grantee  the  right  to  select  the  land,  to 
the  amount  granted,  upon  which  he  may 
prospect.  Perrv  v.  Acme  Oil  Company, 
1:99,  44  Ind.  App.  207,  88  N.  C.  859. 

Abandonment. 

8.  Temporary  cessation  of  oper- 
ations under  an  oil  lease  with  the  ex- 
pectation to  resume  work  when  more  oil 
has  drained  into  the  basin  does  not  con- 
stitute an  abandonment  of  the  lease. 
Simms  v.  Reisner  et  al.,  1:238,  —  Tex. 
Civ.  — ,   134  S.  W.  278. 

Forfeiture. 

9.  Equity  may  declare  a  forfeit- 
ure of  a  mineral  lease  for  breach  of  an 
implied  covenant  to  explore  and  operate 
within  a  reasonable  time.  Mansfield  Gas 
Co.  v.  Alexander.  1  :286,  —  Ark.  — ,  133 
S.  W.  837. 

10.  Oil  and  gas  leases  or  con- 
tracts are  not  subject  to  the  rule  that  for- 
feitures are  not  favored,  and  provisions 
looking  towards  a  forfeiture  are  gen- 
erally held  to  be  for  the  benefit  of  the 


Index  to  Cases. 


799 


landowner  and  clearly  enforceable.  Risen 
et  al.  v.  Burch,  1:3*25,  —  Ind.  — ,  95 
N.  E.   123. 

11.  The  forfeiture  clause  in  an 
oil  lease  is  for  the  benefit  of  the  lessor, 
and  he  may  avail  himself  of  it  or  not 
as  he  sees  fit.  If  he  does  not  declare  a 
forfeiture,  the  lease  remains  in  force, 
and  the  lessee  may  enter  upon  the  leased 
premises.  Perry  v.  Acme  Oil  Company, 
1:99,   44   Ind.   App.   207,  88   N.   E.   859. 

12.  The  question  of  whether  or 
not  an  oil  lease  has  been  surrendered  or 
forfeited  is  not  one  to  be  decided  on 
application  for  temporary  injunction 
against  operations  by  the  lessee.  Simms 
v.  Reisner  et  al.,  1:238,  —  Tex.  Civ. 
— ,  134  S.  W.  278. 

Exhaustion   of    Mineral. 

13.  Lessee  will  not  be  required 
to  pay  the  minimum  royalty  under  a 
lease  providing  for  production  of  a  cer- 
tain amount  of  coal  "unless  prevented 
from  doing  so  by  any  unavoidable  acci- 
dent or  occurrences  beyond  their  control" 
where  the  coal  has  become  exhausted. 
Bannan  v.  Graeff  et  al.,  1:548,  186  Pa. 
St.   648,  40  Atl.   805.      (Annotated) 

Under    Canadian    Statutes. 

14.  Where  by  Act  of  Legislature 
(Act  of  1908,  c.  11)  the  power  was 
withdrawn  from  the  Commissioner  of 
Mines  to  receive  applications  for  leases 
of  areas  situated  within  a  specified  ter- 
ritory, and  in  view  of  confusion  and  diffi- 
culties which  had  arisen  with  respect  to 
the  boundaries  of  leases  within  said  ter- 
ritory, a  survey  was  ordered,  the  court 
declined  to  make  a  declaration  that  there 
was  vacant  in  the  territory  specified  not 
covered  by  existing  leases  and  open  to 
application  by  the  relator,  or  that  defend- 
ant's lease  exceeded  the  statutory  limit. 
Per  Meagher,  J.  (Townshend,  C.  J.,  con- 
curring). Where  a  discretion  is  given  to 
the  court  it  Avill  not  be  exercised  where 
the  result  would  be  embarrassing.  Per 
Russell,  J.  (in  the  judgment  appealed 
from ) .  A  statutory  power  in  respect  to 
leases  of  crown  lands  must  be  strictly 
exercised.  Attorney  General  v.  Dominion 
Coal  Co.,   1:671,  44  Xova  Scotia  423. 

15.  The  Dominion  Coal  Company, 
■who  were  holders  of  a  license  to  search 
for  coal,  covering  an  area  of  five  square 
miles,  made  application  under  the  provi- 
sions of  the  Mines  Act,  R.  S..  c.  IS,  §  194, 
for  a  lease  of  an  area  of  one  square  mile 
of  the  land  included  within  the  bound- 
aries  of  their  license  to  search.  The  de- 
scription in  the  application  for  the  lease 


described  the  area  applied  for  as  situated 
at  the  southeast  corner  of  the  area 
originally  licensed  to  M.  and  then  west- 
wardly,  by  the  southern  line  of  said  lease, 
two  miles.  A  question  having  arisen  as 
to  the  exact  location  of  the  area  under 
lease  to  M.  and  that  applied  for  by  the 
company,  the  commissioner  of  mines 
ordered  a  survey,  as  the  result  of  which 
it  was  found  that  a  portion  of  the  lease 
granted  to  M.  extended  beyond  the  boun- 
daries of  his  license  to  seach  and  in- 
cluded about  one-half  of  the  area  applied 
for  by  the  company.  The  commissioner 
under  these  circumstances  declined  to 
issue  the  lease  applied  for  by  the  com- 
pany, and  directed  the  issue  of  a  lease 
the  boundaries  of  which  were  described 
in  such  a  way  as  to  exclude  any  portion 
of  the  area  under  lease  to  M.  Held,  by 
the  majority  of  the  court  (adopting  the 
opinion  of  Davies,  J.,  in  Drysdale  v. 
Dominion  Coal  Co.,  34  S.  C.  C.  332), 
that  the  matter  was  one  involving  a 
legal  question  upon  which  the  commis- 
sioner had  no  right  to  pass ;  that  no 
decision  of  his  could  either  contract  or 
expand  the  lease  to  M.,  and  it  was  there- 
fore his  duty  to  have  granted  the  appli- 
cation made  by  the  company,  excepting 
thereout  such  lands  as  might  be  found 
and  determined  to  be  included  in  the 
lease  to  M.,  leaving  that  question  to  be 
subsequently  determined  by  the  court  in  a 
proper  action.  Also,  that  the  commis- 
sioner exceeded  his  powers  in  relation  to 
the  survey  ordered  by  him,  such  power 
(§  195),  being  confined  to  a  survey  of 
the  tract  of  ground  selected  out  of  the 
area  covered  by  the  license  to  search,  and 
giving  no  power  to  direct  the  survey  and 
the  preparation  of  a  plan  of  another 
tract  of  ground.  Also,  that  the  com- 
missioner exceeded  his  authority  in  per- 
mitting M.  to  go  outside  the  boundaries 
of  his  license  to  search  and  include  in 
his  lease  land  already  covered  by  a 
license  to  search  issued  to  another  party 
and  assigned  to  the  coal  company.  In  re 
Dominion  Coal  Co.,  1:704,  42  Nova 
Scotia  108. 

LEGISLATURE. 

Powers  of  over  drainage,  see  Drainage, 
18-23. 

LICENSES. 

Creation. 

1.  A     deed     conveying     one-half 

interest  in  a  mine,  with  an  agreement 
that   the   grantees  may  work   said  mine 


800 


"Watek  and  Mineral  Cases. 


at  their  own  cost  and  divide  all  proceeds 
for  a  period  of  twenty  years  equally 
among  the  parties,  is  construed  as  creat- 
ing only  a  license  with  respect  to  the 
half  retained.  Shaw  v.  Caldwell  et  al., 
1 :558,  —  Cal.  — ,  115  Pac.  941. 

Revocation. 

2.  A  license  is  a  mere  personal 
privilege  not  binding  upon  subsequent 
grantees,  and  consequently  revoked  by 
conveyance  of  the  land.  Shaw  v.  Cald- 
well et  al.,  1:558,  —  Cal.  — ,  115  Pac. 
941. 

3.  The  fact  that  a  license  is 
given  by  written  instrument  or  by  deed 
does  not  affect  its  revocability.  Shaw  v. 
Caldwell  et  al.,  1:558,  —  Cal.  — ,  115 
Pac.  941. 

LIFE    ESTATES. 

Oil  and  Gas. 

1.  A  life  tenant  has  no  right  to 
grant  the  right  of  exploration  for  oil  and 
gas  and  to  profit  from  its  discovery. 
Rupel  et  al.  v.  Ohio  Oil  Co.  et  al.,  1 :331, 
—  Ind.  — ,  95  N.  E.  225. 

2.  The  owner  of  the  reversion 
may  enjoin  the  invasion  of  his  right  to 
oil  and  gas  on  his  land.  Rupel  et  al.  v. 
Ohio  Oil  Co.  et  al.,  1:331,  —  Ind.  — , 
95  N.  E.  225. 

Waste. 

3.  A  reversioner  may  recover  for 
waste  from  one  claiming  under  the  life 
tenant  or  from  a  stranger.  Rupel  et  al. 
v.  Ohio  Oil  Co.  et  al.,  1 : 331,  —  Ind.  — , 
95  N.  E.  225. 

LOCATION. 

Relation    back    of    patent    to    date    of 

location,  see  Patents,  3. 
Conflict    between     location    and    town 

site  patent,  see  Town  Sites. 

Lands   Subject. 

1.  Mineral  lands  situated  within 
railroad  grants  are  subject  to  location 
as  mining  claims  up  to  the  time  of  the 
issuance  of  the  patent  to  the  railroad 
company.  Van  Ness  v.  Rooney  et  al., 
1:270,  —  Cal.  — ,  116  Pac.  392. 

Extent  of  Placer  Location. 

2.  Five  persons  may,  by  means  of 
proper  association,  make  valid  location 
of  one  hundred  acres  in  one  placer  claim, 


but  only  where  each  acquires  an  interest 
not  to  exceed  twenty  acres.  Nome  & 
Sinook  Co.  v.  Snyder,  1:202,  187  Fed. 
385. 

3.  A  placer  location  of  one  hun- 
dred acres,  made  by  an  association  of 
five  persons  under  an  agreement  whereby 
two  of  the  parties  were  to  receive  only 
nominal  interests  and  the  others  in  un- 
equal shares,  is  held  void,  and  the  ground 
declared  unappropriated  mineral  land 
subject  to  location  by  others.  Nome  & 
Sinook  Co.  v.  Snyder,  1:202,  187  Fed. 
385. 

Lodes    in    Placer   Claim. 

4.  Where  a  known  vein  exists 
within  the  ground  claimed  in  an  appli- 
cation for  placer,  it  remains  public  prop- 
erty of  the  United  States.  Washoe  Cop- 
per Co.  v.  Junila  et  al.  (Hall  et  al., 
Interveners),  1:451,  —  Mont.  — ,  115 
Pac.  917. 

5.  In  order  to  exclude  a  lode 
from  a  placer  claim,  the  lode  must  have 
been  known  to  the  applicant  or  to  the 
community  in  general  at  the  time  of 
application.  Washoe  Copper  Co.  v. 
Junila  et  al.  (Hall  et  al.,  Interveners), 
1  ;451,  —  Mont.  — ,  115  Pac.  917. 

6.  Where  it  is  sought  to  exempt 
a  particular  lode  from  a  placer  claim, 
evidence  of  the  character  and  extent  of 
the  lode  as  divulged  by  operations  sub- 
sequent to  the  placer  application,  held 
competent.  Washoe  Copper  Co.  v.  Junila 
et  al.    (Hall  et  al.,  Interveners),  1:451, 

—  Mont.  — ,  115  Pac.  917. 

Essentials. 

In  General. 

7.  The  regulations  prescribed  by 
law  to  make  a  valid  location  of  a  min- 
ing claim  in  Alaska  are:  (1)  Discovery 
of  mineral  upon  or  within  the  ground 
located;  (2)  marking  of  boundaries  upon 
ground  so  that  they  may  be  readily 
traced;  (3)  recording  of  notice  within 
ninety  days  from  discovery.  Charlton  v. 
Kelly,  1:293,  2  Alaska  532.  (Anno- 
tated ) 

8.  The  order  in  which  acts  of 
location  are  done  is  immaterial,  provided 
they  are  all  completed  before  rights  of 
others  have  intervened.  Charlton  v. 
Kelly,  1:293,  2  Alaska  532. 

9.  It  is  not  essential  that  dis- 
covery precede  or  coexist  with  demarca- 
tion of  boundaries  before  recording  of 
notice.  Charlton  v.  Kelly,  1:293,  2 
Alaska  532. 


Index  to  Cases. 


801 


10.  Until  all  three  acts  of  loca- 
tion are  performed,  no  title  passes  to 
claimant  sufficient  to  maintain  eject- 
ment unless  he  has  marked  boundaries 
and  recorded  notice  and  is  in  actual 
possession,  attempting  in  good  faith  to 
make  discovery.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

11.  The  law  requires  the  locator 
to  make  his  location  so  definite  and 
certain  that  from  the  location  notice 
and  stakes  and  monuments  on  the  ground 
the  limits  and  boundaries  of  the  claim 
may  be  ascertained,  and  so  definite  and 
certain  as  to  prevent  the  changing  or 
floating  of  such  claim.  Flynn  Group 
Min.  Co.  v.  Murphv.  1:619*,  18  Idaho 
266,  109  Pac.  851,  138  Am.  St.  Rep.  201. 
(Annotated) 

Discovery. 

12.  Discovery  subsequent  to 
marking  the  boundaries  and  recording 
of  notice  perfects  location  unless  bona 
fide  rights  have  intervened.  Charlton  v. 
Kelly,  1:293,  2  Alaska  532. 

13.  Mere  marking  of  boundaries 
and  posting  and  recording  of  notice  of 
location,  give  no  title  to  locator,  nor  do 
they  constitute  possession.  Charlton  v. 
Kellv,  1:293,  2  Alaska  532.  (Anno- 
tated) 

14.  Discovery  is  sufficient  where 
the  mineral  found  is  such  that  a  person 
of  ordinary  prudence  would  be  justified 
in  the  further  expenditure  of  his  labor 
and  means  with  a  reasonable  prospect  of 
success  in  developing  a  valuable  mine, 
and  the  facts  within  the  observation  of 
the  discoverer  and  which  induce  him  to 
locate  should  be  such  as  would  justify 
a  man  of  ordinary  prudence,  not  neces- 
sarily a  skilled  miner,  in  the  expenditure 
of  time  and  money  in  the  development 
of  the  propertv.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

15.  When  controversy  is  between 
two  mineral  claimants,  the  rule  respect- 
ing sufficiency  of  discovery  is  more  lib- 
eral than  when  it  is  between  a  mineral 
claimant  and  one  seeking  to  make  an 
agricultural  entry.  Charlton  v.  Kellv, 
1:293,  2  Alaska  532. 

16.  To  constitute  discovery,  more 
than  mere  conjecture,  hope,  or  even  in- 
dications, is  required.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

17.  Mere  indications  of  mineral, 
however  strong,  are  not  sufficient  to  an- 
swer the  requirement  of  the  statute  as 
to  a  discovery.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

W.  &  M.— 51 


18.  Indications  of  mineral  should 
be  considered  as  to  whether  it  is  in  such 
quantity  and  under  such  circumstances 
and  conditions  as  would  justify  a  man 
of  ordinary  prudence,  not  necessarily  a 
skilled  miner,  in  expenditure  of  time 
and  monev  in  development  of  the  prop- 
erty. Charlton  v.  Kelly,  1:293,  *2 
Alaska   532. 

19.  While  the  statute  requires  that 
discovery  of  mineral  should  be  liberally 
construed  in  behalf  of  bona  fide  locators, 
the  requirement  cannot  be  ignored,  and 
discovery  must  be  of  such  substantial 
kind  and  character  as  would  justify  a 
man  of  ordinary  prudence  in  expenditure 
of  time  and  money  to  develop  the  prop- 
erty. Charlton  v.  Kelly,  1:293,  2 
Alaska    532. 

20.  In  determining  the  suffi- 
ciency of  discovery,  geological  and  nat- 
ural conditions  of  the  ground  and  the 
surrounding  country  should  be  considered. 
Charlton  v.  Kelly,  1:293,  2  Alaska  532. 

21.  Discovery  of  mineral  is  es- 
sential to  the  validity  of  mining  claim. 
Zeigler  v.  Dowdy  et  al.,  1:409,  —  Ariz. 
— ,  114  Pac.  565. 

22.  A  discovery  of  valuable  min- 
eral within  the  located  boundaries  is  a 
prerequisite  to  a  valid  mineral  location 
upon  the  public  lands.  Harper  v.  Hill 
et  al.,   1:585,  —  Cal.  — ,   113  Pac.   162. 

23.  No  specific  yield  is  necessary 
to  constitute  a  placer  nor  is  it  required 
that  the  deposits  of  mineral  shall  be 
sufficiently  extensive  to  pay  operating  ex- 
penses in  order  to  maintain  a  valid 
placer  claim.  Murrav  v.  White  et  al., 
1:538,  —  Mont.  — ,   113   Pac.   754. 

24.  The  finding  of  precious 
metals  in  quantity  which  justifies  the 
expenditure  of  time  and  money  with  the 
reasonable  hope  of  reward  is  sufficient 
to  constitute  a  discoverv.  Murray  v. 
White  et  al.,  1:533,  —Mont.  — ,  113 
Pac.  754. 


Notice. 

25.  Absolute  technical  strictness 
in  the  preparation  of  a  notice  of  loca- 
tion is  not  required.  Charlton  v.  Kellv, 
1:293,  2  Alaska  532. 

26.  The  object  of  notice  of  loca- 
tion is  to  prevent  swinging  of  claim  or 
change  of  boundaries,  and  to  guide  sub- 
sequent locator  and  afford  him  informa- 
tion as  to  extent  of  claim.  Charlton  v. 
Kelly,   1:293,  2  Alaska  532. 


802 


Water  and  Mineral  Cases. 


27.  Under  the  provisions  of  sec- 
tion 3207,  Rev.  Codes,  the  location  no- 
tice is  not  required  to  describe  the  ex- 
terior boundaries  of  the  claim.  Flynn 
Group  Min.  Co.  v.  Murphy,  1:619,  18 
Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 

28.  Where  it  apears  that  a  min- 
ing claim  has  been  located  in  good  faith, 
if  by  any  reasonable  construction  the 
language  used  in  the  location  notice  de- 
scribing the  claim  and  referring  to 
natural  objects  and  permanent  monu- 
ments imparts  knowledge  of  the  location 
of  such  claim  to  a  subsequent  locator, 
it  is  sufficient.  Flynn  Group  Min.  Co.  v. 
Murphy,  1:619,  18  Idaho  266,  109  Pac. 
851,  138  Am.  St.  Rep.  201. 

Marking   on    Ground. 

29.  Claim  must  be  so  distinctly 
marked  upon  the  ground  that  boundaries 
can  be  readily  traced.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

30.  Setting  stakes  at  each  cor- 
ner of  a  claim  and  at  the  center  of  end 
line  is  not  necessarily  a  proper  marking. 
Charlton  v.  Kelly,  1:293,  2  Alaska  532. 

31.  What  is  a  proper  marking 
may  depend  upon  the  topography  of  the 
ground  and  surrounding  circumstances. 
Charlton  v.  Kelly,   1:293,  2  Alaska  532. 

32.  What  is  a  sufficient  marking 
of  the  boundaries  is  a  question  of  fact 
for  the  jury.  Charlton  v.  Kelly,  1:293, 
2  Alaska  532. 

33.  Stakes  set  at  each  corner  of 
the  claim,  with  center  stake  at  each  end, 
with  reference  to  some  other  natural  ob- 
ject or  permanent  monument  in  the  local- 
ity, such  as  another  well-known  claim,  is 
a  sufficient  compliance  with  the  require- 
ments of  the  statute.  Charlton  v.  Kelly, 
1:293,  2  Alaska  532. 

34.  Under  the  provisions  of  sec- 
tion 3207,  Rev.  Codes,  the  locator  of  a 
mining  claim  is  required  to  erect  a  monu- 
ment at  the  place  of  discovery  upon 
which,  among  other  things,  he  must 
place  the  distance  claimed  along  the  vein 
each  way  from  such  monument.  Flynn 
Group  Min.  Co.  v.  Murphy,  1:619,  18 
Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 

Possession. 

35.  The  rule  that  actual  posses- 
sion is  not  necessary  to  protect  one's 
title  to  a  claim  held  under  a  mining 
location  applies  only  when  the  location 


has  been  completed  by  a  discovery  of 
valuable  mineral.  McLemore  v.  Express 
Oil  Co.,  1:232,  —  Cal.  — ,  112  Pac.  59. 

36.  A  mining  claim  is  possessed 
by  marking  boundaries,  recording,  and 
making  discovery  of  mineral,  etc.;  a  resi- 
dence on  the  claim  is  not  required. 
Charlton  v.  Kelly,  1:293,  2  Alaska  532. 

37.  Merely  placing  tent,  tools, 
and  small  supply  of  provisions  on  a 
claim  does  not  alone  constitute  posses- 
sion thereof.  Charlton  v.  Kelly,  1:293, 
2  Alaska  532. 

38.  Mere  casual  visits  to  ground 
and  leaving  thereon,  unused,  tents,  tools, 
and  provisions,  does  not  constitute  actual 
possession.  Charlton  v.  Kelly,  1:293,  2 
Alaska  532. 

Mistaken  Location  of  Apex. 

39.  One  who  locates  a  mining 
claim  in  good  faith  is  protected  in  his 
possession  of  the  surface  marked  out, 
although  subsequent  developments  show 
his  location  of  the  apex  of  the  vein  to 
have  been  erroneous.  Harper  v.  Hill  et 
al.,  1:585,  —  Cal.  — ,  113  Pac.  162. 

Excessive   Location. 

40.  Where  the  boundaries  of  a 
claim  are  made  excessive  in  size,  with 
fraudulent  intent,  it  is  void;  or,  if  so 
large  as  to  preclude  the  presumption  of 
innocent  error,  fraud  will  be  presumed. 
Flvnn  Group  Min.  Co.  v.  Murphy, 
1:619,  18  Idaho  266,  109  Pac.  851,  138 
Am.    St.    Rep.    201. 

41.  Held  that  where  a  location 
notice  states  that  the  mining  claim  which 
it  describes  extends  seven  hundred  feet 
in  a  northwesterly  direction  and  eight 
hundred  feet  in  a  southeasterly  direction 
along  the  lode,  a  locator  may  go  to  the 
point  of  discovery  of  such  claim  and 
measure  the  ground  from  the  discovery 
point  eight  hundred  feet  in  a  south- 
easterly direction  along  the  lode,  and  if 
there  be  any  unlocated  ground  beyond 
that  eight  hundred  feet,  may  legally 
locate  it,  regardless  of  the  fact  that  the 
easterly  end  stakes  had  been  established 
beyond  the  eight  hundred  feet.  Flynn 
Group  Min.  Co.  v.  Murphy,  1:619,  18 
Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 

42.  The  case  of  Nicholls  v.  Lewis 
&  Clark  Mining  Co.,  18  Idaho  224,  109 
Pac.  846,  cited  and  approved,  and  the 
case  of  Atkins  v.  Hendree,  1  Idaho  95, 
cited  and  disapproved,  so  far  as  it  holds 
that  no  fraud  can  be  perpetrated  where 


Index  to  Cases. 


803 


there  exists  the  means  of  ascertaining  or 
discovering  the  fraud.  Flynn  Group  Min. 
Co.  v.  Murphy,  1:619,  18  Idaho  266,  109 
Pac.   851,    138   Am.   St.   Rep.   201. 

43.  A  placer  claim  location  ex- 
ceeding the  statutory  twenty  acres  does 
not  render  the  entire  claim  void;  it  is 
void  as  to  excess  only.  Zimmerman  et 
al.  v.  Funchion  et  al.,  1:437,  89  C.  C. 
A.   53,    161   Fed.   859.      (Annotated) 

44.  The  prior  locator  in  actual 
possession  of  a  placer  claim  which  ex- 
ceeds the  legal  limitation,  and  diligently 
working  the  same  in  good  faith,  may 
select  what  portion  of  the  claim  he  will 
discard  as  excess  (following  Mcintosh 
v.  Price,  121  Fed.  716,  58  C.  C.  A.  136). 
Zimmerman  et  al.  v.  Funchion  et  al., 
1:437,    89    C.    C.   A.    53,    161    Fed.   859. 

45.  Where  the  prior  locator,  who 
is  not  in  actual  possession  of  the  claim 
containing  an  excess  over  the  legal  limi- 
tation, knowingly  refuses  or  neglects  to 
draw  in  his  lines  to  the  legal  limit,  any 
other  prospector  may  take  the  excess 
within  another  location  from  any  part 
of  such  prior  excessive  location  (raised 
but  not  decided).  Zimmerman  et  al.  v. 
Funchion  et  al.,  1 :437,  89  C.  C.  A.  53, 
161   Fed.   859. 

Operation   and    Effect. 

46.  A  subsequent  valid  location 
of  a  mining  claim  in  this  state  cannot 
be  made  on  mineral  land  that  is  already 
covered  by  a  valid  location.  Flynn  Group 
Min.  Co.  v.  Murphv,  1:619,  18  Idaho 
266,  109  Pac.  851,  138  Am.  St.  Rep.  201. 

47.  Where  a  discovery  is  made  on 
a  vein  of  mineral  bearing  rock,  and  the 
notice  provides  that  such  claim  extends 
several  hundred  feet  in  a  northwesterly 
direction  and  eight  hundred  feet  in  a 
southeasterly  direction  from  such  dis- 
covery, and  the  corner  stakes  on  the 
southeasterly  end  are  so  placed  as  to 
take  in  more  than  eight  hundred  feet  of 
such  vein,  subsequent  locators  may  legal- 
ly locate  the  excess  of  ground,  as  the 
first  location  is  void  only  to  the  extent 
of  eight  hundred  feet  southeasterly  from 
the  point  of  discovery  on  said  claim. 
Flynn  Group  Min.  Co.  v.  Murphy,  1:619, 
18  Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 

48.  A  mining  location  secures  a 
good  title  in  the  locator,  without  a  pat- 
ent, so  long  as  there  has  not  been  a  sub- 
sequent location  based  on  his  failure  to 
do  assessment  work.  Van  Ness  v.  Rooney 
et  al.,   1:270,  —  Cal.  — ,  116  Pac.  392. 


49.  A  locator   who    has    marked 

boundaries  and  recorded  notice  and  en- 
tered into  actual  possession  for  the  pur- 
pose of  making  discovery,  is  entitled  to 
possession  so  long  as  he  remains  in  actual 
possession,  engaged  in  good  faith  in 
labor  of  making  discoverv.  Charlton  v. 
Kelly,  1:293,  2  Alaska  532. 

Relocation. 

_  50.  One  claiming  under  a  reloca- 

tion is  precluded  from  denying  the  valid- 
ity of  the  prior  location.  Zeiger  v.  Dow- 
dy et  al.,  1:409,  —  Ariz.  — ,  114  Pac. 
565. 

51.  One  who  has  abandoned  an 
attempted  relocation  and  claims  the  land 
merely  as  an  occupant  is  not  estopped 
to  deny  the  validity  of  the  prior  loca- 
tion. Zeiger  v.  Dowdy  et  al.,  1:409,  — 
Ariz.   — ,    114   Pac.   565. 

52.  Held,  that  the  locator  had 
actual  notice  that  the  ground  in  con- 
troversy had  been  located,  as  well  as  con- 
structive notice  by  an  examination  of 
the  recorded  notice,  and  that  no  tech- 
nicalities will  be  resorted  to  to  sustain 
his  relocation  of  the  same  ground.  Flynn 
Group  Min.  Co.  v.  Murphy,  1:619,  18 
Idaho  266,  109  Pac.  851,  138  Am.  St. 
Rep.  201. 

Under   Canadian    Statutes. 

53.  Formal  notice  of  abandon- 
ment of  placer  "creek  claim"  with  at- 
tempted location  under  act  then  repealed 
held  not  necessary  to  a  valid  location 
under  Act  of  1901.  Wheelden  v.  Crans- 
ton,  1:659,   12  Brit.  Col.  489. 

54.  One  post  may  be  used  to  desig- 
nate two  placer  claims  with  coterminous 
boundaries.  Wheelden  v.  Cranston, 
1:659,   12  Brit.  Col.  489. 

55.  Purpose  of  section  49  of  the 
Placer  Act  is  to  protect  the  rights  of 
surrounding  owners  and  the  Crown. 
Wheelden  v.  Cranston,  1:659,  12  Brit. 
Col.   489. 

56.  Attempted  location  of  claim 
upon  an  existing  one  held  to  entitle 
plaintiff  to  nominal  damages,  in  absence 
of  evidence  of  special.  Wheelden  v. 
Cranston,  1:659,  12  Brit.  Col.  489. 


LOCATION  CERTIFICATE. 


Admissibility  in  evidence,  see  Evidence, 
6-8. 


804 


Water  and  Mineral  Cases. 


LODES. 

Existence  in   placer  claims,   see  Loca- 
tion,  4-6. 


MARKING. 
Of  location,  see  Location,  29-34. 

MECHANICS'  AND  MINERS'  LIENS. 

Right  in  General. 

1.  The  law  relating  to  mechanics' 
liens  is  entirely  statutory,  and  parties 
claiming  rights  thereunder  must  bring 
themselves  within  the  plain  terms  of  the 
law.  Christy  v.  Union  Oil  &  Gas  Co., 
1:254,  —  Okla.  — ,  114  Pac.  740. 

Priorities. 

2.  A  lien  for  materials  furnished 
prior  to  a  mortgage  takes  precedence 
over  the  latter  although  not  filed  until 
after  the  institution  of  proceedings  to 
foreclose  the  mortgage.  Grant's  Pass 
Banking  &  Trust  Co.  v.  Enterprise  Min- 
ing Co.;  Condor  Water  &  Power  Co.  v. 
Enterprise  Mining  Co.  et  al.,  1:412,  — 
Or.  — ,   113  Pac.  858. 

Property  Subject. 

3.  Mill  sold  under  condition  that 
title  shall  not  pass  until  fully  paid  for, 
affixed  to  the  realty,  becomes  a  fixture 
as  to  laborers  without  notice  and  is  sub- 
ject to  their  liens.  Washburn  v.  Inter- 
Mountain  Mining  Co.,  1:90,  —  Or.  — , 
109   Pac.    382.    (Annotated) 

4.  Reference  to  "roads,  tram- 
ways, flumes,  ditches  and  pipe  lines," 
etc.,  in  §  5668,  B.  &  C.  Comp.  as  amend- 
ed in  1907,  includes  such  appurtenances 
when  not  situated  upon  the  mine,  as 
those  upon  the  mine  are  part  of  the 
realty  and  need  not  be  specially  men- 
tioned. Washburn  v.  Inter-Mountain 
Mining  Co.,  1:90,  —  Or.  — ,  109  Pac. 
382. 

5.  Use  of  term  "upon  any  mill 
site  or  mill  used,  owned  or  operated  in 
connection  with  such  mine"  in  section 
5668,  B.  &  C.  Comp.  prior  to  amendment 
of  1907,  had  reference  to  such  mill  site 
and  mill  not  situated  upon  the  mine, 
and  the  section  as  amended  necessarily 
includes  mill  site  and  mill  situated  upon 
the  mine.  Washburn  v.  Inter-Mountain 
Mining  Co.,  1:90,  —  Or.  — ,  109  Pac. 
382. 


Persons    Entitled. 

6.  Foreman  of  mine,  who  did  gen- 
eral work,  helped  on  different  things, 
framed  timbers  and  looked  after  the 
work,  is  entitled  to  a  miner's  lien. 
\\  ,-ishburn  v.  Inter-Mountain  Mining  Co., 
1:90,  —  Or.  — ,   109  Pac.  382. 

7.  Every  person  who  deals  di- 
rectly with  the  owner  of  the  property 
and  who  in  pursuance  of  a  contract  with 
him  performs  labor  or  furnishes  material, 
is  an  original  contractor  within  the 
meaning  of  the  statute.  Gray  v.  New 
Mexico  Pumice  Stone  Co.,  1:157,  —  N. 
M.   — ,    110   Pac.   603. 

8.  Labor  in  working  in  a  quarry 
as  a  laborer,  working  as  foreman  with 
other  laborers,  directing  them  in  their 
work,  working  at  lime-kiln,  gathering  up 
tools,  closing  lime  bins,  and  caring  for 
team  of  horses,  is  all  within  the  statute 
allowing  mechanic's  lien.  Gray  v.  New 
Mexico  Pumice  Stone  Co.,  1:157,  —  N. 
M.  — ,  110  Pac.  603.      (Annotated) 

9.  Under  a  statute  giving  a  sub- 
contractor a  right  of  lien  on  an  oil 
or  gas  leasehold  to  the  same  extent  as 
the  original  contractor,  an  agreement 
that  there  shall  be  no  liability  until 
the  work  is  completed  is  equally  binding 
on  the  subcontractor.  Christy  v.  Union 
Oil  &  Gas  Co.,  1:254,  —  Okla.  — ,  114 
Pac.  740. 


Supplies. 

10.  The  word  "supplies,"  as  used 
in  the  mining  lien  statute,  is  defined  as 
"any  substance  the  use  of  which  might 
reasonably  tend  to  the  working  or  con- 
tribute to  the  development  of  a  mine." 
Grant's  Pass  Banking  &  Trust  Co.  v. 
Enterprise  Mining  Co. ;  Condor  Water  & 
Power  Co.  v.  Enterprise  Mining  Co.  et 
al.,  1:412,  —  Or.  — ,  113  Pac.  858. 

11.  Electricity  is  a  supply  with- 
in the  meaning  of  the  mining  lien  stat- 
ute. Grant's  Pass  Banking  &  Trust  Co. 
v.  Enterprise  Mining  Co. ;  Condor  Water 
&  Power  Co.  v.  Enterprise  Mining  Co.  et 
al.,  1:412,  —  Or.  — ,  113  Pac.  858. 

Notice. 

12.  It  is  not  necessary  that  lien 
notice  state  or  proof  show  that  labor 
for  which  lien  is  claimed  was  done  on 
the  mill  or  building  to  subject  them  to 
the  lien.  Washburn  v.  Inter-Mountain 
Mining  Co.,  1:90,  —  Or.  — ,  109  Pac. 
382. 


Index  to  Cases. 


805 


Statement. 

13.  Under  Sec.  2221  of  the  Com- 
piled Laws  of  1897,  providing  that  every 
person  claiming  a  mechanic's  lien  must 
file  for  record  with  the  county  recorder 
of  the  county  in  which  the  property  is 
situated  a  claim  containing  a  statement 
of  his  demands,  etc.,  with  a  statement 
of  the  terms,  time  given,  and  conditions 
of  his  contract,  it  is  sufficient  as  against 
a  demurrer  to  state  that  claimant  agreed 
with  the  owner  of  the  property  to  work 
for  it  for  the  sum  of  three  dollars  a  day 
and  board.  Gray  v.  New  Mexico  Pumice 
Stone  Co.,  1:157,  —  N.  M.  — ,  110  Pac. 
603. 

14.  Statement  in  the  claim  of 
lien  that  it  is  for  labor  performed  by 
the  lien  claimant  in  the  construction  of 
the  mining  claim  on  the  land,  is  suffi- 
cient. Gray  v.  New  Mexico  Pumice  Stone 
Co.,  1:157,  —  N.  M.,  110  Pac.  603. 

Limitations. 

15.  The  right  to  file  a  proper  lien 
continues  until  the  expiration  of  the 
time  allowed  to  file  an  original  lien,  not- 
withstanding prior  unsuccessful  at- 
tempts. Grant's  Pass  Banking  &  Trust 
Co.  v.  Enterprise  Mining  Co.;  Condor 
VY ;iter  &  Power  Co.  v.  Enterprise  Min- 
ing Co.  et  al.,  1:412,  —  Or.  — ,  113 
Pac.   858. 

Pleading. 

16.  A  separate  demurrer  by  a  sub- 
sequent incumbrancer  directly  raises  the 
question  whether  the  complaint  and 
claim  of  lien  states  facts  sufficient  to 
constitute  a  cause  of  action  against  the 
defendant  demurring.  Gray  v.  New 
Mexico  Pumice  Stone  Co.,  1:157,  —  N. 
M.  — ,  110  Pac.  603. 

Evidence. 

17.  Evidence  of  one  who  em- 
ployed men,  directed  their  work,  kept 
their  time  and  was  bookkeeper  of  the 
mine,  that  the  claimants  worked  extract- 
ing ores  and  breaking  ground  in  different 
places  on  the  property,  giving  the  whole 
amount  due  and  the  amounts  paid  the 
laborers,  is  prima  facie  sufficient  to  sus- 
tain a  lien.  Washburn  v.  Inter-Moun- 
tain Mining  Co.,  1:90,  —  Or.  — ,  109 
Pac.    382. 

Marshaling   Assets. 

18.  It  is  only  when  there  are 
two  properties  that  the  doctrine  of  mar- 
shaling securities  can  be  invoked  and  it 


cannot  be  invoked  where  mines  and  mills 
constitute  one  property,  and  neither  can 
be  sold  separately  without  a  deprecia- 
tion in  value  of  the  other.  Washburn 
v.  Inter-Mountain  Mining  Co.,  1:90,  — 
Or.   — ,    109   Pac.   382. 

Attorneys'    Fees. 

19.  The    statute    allowing    attor- 

neys' fees  upon  foreclosure  of  mechanic's 
lien  is  constitutional.  Gray  v.  New 
Mexico  Pumice  Stone  Co.,  1:157,  —  N. 
M.  — ,   110  Pac.  603. 


MINERAL    RIGHTS. 

Sufficiency  of  evidence  to  show  reserva- 
tion in  burnt  deed,  see  Con- 
veyances,   7. 


MINER'S    LIEN. 

See  Mechanics'  Liens. 

MINES. 

See  Assessment  Work;  Location;  Pat- 
ents ;   Surveys. 

Conflict  between  mining  claim  and 
town  site  patent,  see  Town  Sites. 

Construction  of  mineral  lease,  see 
Leases,  6. 

Declarations  acknowledging  existence 
of  a  known  lode  on  a  placer  claim  as 
admissible  to  defeat  record  title,  see 
Evidence,    5. 

Possession  for  agricultural  purposes 
as  adverse  to  mining  rights,  see  Ad- 
verse Possession,    1. 

Trial  of  mining  right  by  injunction, 
see  Injunctions,  1. 

Definitions. 

1.  A  mine  is  defined  as  a  large 
opening  in  the  ground  made  for  the  pur- 
pose of  getting  metal  ores  or  coal.  J.  M. 
Guffey  Petroleum  Co.  v.  Murrel,  Tax  Col- 
lector, et  al.,  1:380,  —  La.  — ,  53  So. 
704. 

2.  The  words  "mining  claim"  in 
the  mining  country  have  a  certain  well- 
understood  meaning,  viz.,  a  portion  of 
the  public  mineral  lands  of  the  United 
States  to  which  qualified  persons  may 
first  obtain  the  right  of  occupancy  and 
possession  by  means  of  location  and 
secondly  may  obtain  title  by  pursuing 
certain  prescribed  methods  therefor. 
Gray  v.  New  Mexico  Pumice  Stone  Co., 
1:157,  —  N.  M.  — ,  110  Pac.  603. 


806 


"Water  and  Mineral  Cases. 


Severance    of    Surface    and     Mineral 
Rights. 

3.  The  severance  of  the  surface 
and  mineral  rights  is  accomplished  either 
by  a  conveyance  of  the  land  with  an 
express  reservation  of  the  minerals,  or 
by  a  conveyance  of  the  minerals  or  min- 
ing rights.  J.  R.  Crowe  Coal  &  Mining 
Co.  v.  Atkinson  et  al.,  1:446,  —  Kan. 
— ,  116  Pac.  499. 

4.  Where  there  is  no  showing 
that  coal  in  place  is  separately  assessed 
or  that  its  existence  increased  the  taxes 
against  the  land,  the  nonpayment  of 
taxes  is  not  in  derogation  of  a  (hum 
of  ownership  in  the  coal  alone.  J.  R. 
Crowe  Coal  &  Mining  Co.  v.  Atkinson  et 
al.,  1:446,  —  Kan.  — ,  116  Pac.  499. 


MORTGAGES. 

Parties  to   Foreclosure. 

An  instruction  that  a  sheriff's 
deed  could  not  affect  one  not  made  a 
party  to  the  foreclosure  suit  may  be  con- 
strued as  meaning  that  his  existing  rights 
are  not  affected  thereby.  J.  R.  Crowe 
Coal  &  Mining  Co.  v.  Atkinson  et  al., 
1 :446,  —  Kan.  — ,  116  Pac.  499. 

NATURAL    CHANNELS. 

Right   to   conduct   appropriated   water 
through,  see   Appropriation,  32. 

NEGLIGENCE. 

In    operation   of   pipe    lines,   see    Pipe 
Lines,    3-8. 

Proximate  Cause. 

Where  the  evidence  is  uncontro- 
verted  and  but  one  inference  could  be 
drawn,  the  question  of  proximate  cause 
is  for  the  court.  Jennings  et  al.  v. 
Davis,  1:647,  187  Fed.  703. 

NET  PROCEEDS. 

Construction  of  term,  see  Contracts,  4. 

NEW  TRIAL. 

Newly-Discovered    Evidence. 

Held,  that  the  court  did  not  err  in 
denying  a  new  trial  on  the  ground  of 
newly-discovered  evidence.  Flynn  Group 
Min.  Co.  v.  Murphy,  1:619,  18  Idaho 
266,  109  Pac.  851,  138  Am.  St.  Rep. 
201. 


NOTICE. 

As  essential  to  location,  see  Location, 

25-28. 
Of    appropriation,    see    Appropriation, 

30,  31. 
Of  presentation  and  hearing  of  petition 

for  irrigation  district,  see  Irrigation 

Districts,   2,   3. 
Of  miner's  lien,  see  Mechanics'  Liens, 

12. 

Constructive    Notice. 

A  void  instrument  cannot  impart 
constructive  knowledge  to  any  one. 
Washoe  Copper  Co.  v.  Junila  et  al.  (Hull 
et  al.,  Interveners),  1:451,  —  Mont.  — , 
115  Pac.   917. 


NUISANCE. 

Pipe  line  as  nuisance,  see  Pipe 
Lines,  3. 

OIL. 

See  Pipe  Lines. 

Construction  of  leases,  see  Leases,  2,  4. 

Exploration  upon  railroad  right  of 
way,  see  Railroads,  4,  5. 

Injunction  against  drilling  or  opera- 
tion of  well,  see  Injunctions,  3,  4. 

Right  of  life  tenant  as  to  exploration 
for  oil  and  gas,  see  Life  Estates, 
1,  2. 

Nature. 

Mineral  oil  is  not  classed  as  a 
mineral  within  the  meaning  of  the  Louis- 
iana Constitution.  J.  M.  Guffey  Pe- 
troleum Co.  v.  Murrel,  Tax  Collector,  et 
al.,  1 :3S0,  —  La.  — ,  53  So.  704. 

OIL   CLAIM. 
Diligence. 

1.  Under  the  application  of  the 
placer  mining  laws  to  the  oil  industry, 
the  locator  is  protected  in  his  possession 
only  so  long  as  he  is  with  diligence  prose- 
cuting the  labor  of  digging  his  well.  Mc- 
Lemore  v.  Express  Oil  Co.,  1:232,  — 
Cal.   — ,    112   Pac.   59. 

Homestead   Entry. 

2.  Land  held  under  a  homestead 
entry  is  not  subject  to  the  right  of  entry 
for  the  purpose  of  exploring  for  oil  with- 
out positive  proof  that  the  land  is  more 
valuable  for  mineral  than  for  agricul- 
tural purposes.  McLemore  v.  Express 
Oil  Co.,   1:232,  —  Cal.  — ,  112  Pac.  59. 


Index  to  Cases. 


807 


PARTIES. 

To    action    by    co-owner    of    irrigation 

ditch    for    diversion    of    water,   see 

Ditches,  5. 
To  actions  to  determine  adverse  claims 

to  ditch,  see  Ditches,  13. 
To    injunction    suits,    see    Injunction, 

7,  8. 
In  foreclosure,  see  Mortgages. 

PATENTS. 

Operation   and    Effect. 

In   General. 

1.  Courts  will  not  go  behind  pat- 
ents and  ascertain  from  proofs  which 
of  disputing  parties  has  the  better  right, 
where  neither  could  have  by  his  patent 
acquired  any  right  or  title  to  the  prop- 
erty granted  the  other  by  his  patent. 
Butte  City  Smoke-House  Lode  Cases, 
1:520;    6  Mont.  397,   12  Pac.   858. 

2.  Patent  to  mining  claim  is  evi- 
dence that  the  law  has  been  complied 
with  in  all  proceedings  leading  up  to  its 
issuance,  and  fixes  the  mineral  character 
of  the  claim.  Butte  City  Smoke-House 
Lode  Cases,  1:520,  6  Mont.  397,  12  Pac. 
858. 

Relation   Back. 

3.  The  patent  to  a  mining  claim 
relates  back  to  the  date  of  location  and 
protects  it.  Butte  City  Smoke-House 
Lode  Cases,  1:520,  6  Mont.  397,  12 
Pac.  858.      (Annotated) 

Agricultural    Land. 

4.  A  patent  to  land  as  agricul- 
tural land  transfers  to  the  patentee  all 
mineral  deposits  within  its  boundaries 
not  known  to  exist  at  the  time  of  the 
patent.  Van  Ness  v.  Rooney  et  al., 
1:270,  —  Cal.  — ,  116  Pac.  392. 

Known   Mineral   Deposits. 

5.  Mineral  deposits  whose  exist- 
ence is  known  do  not  pass  under  a  patent 
issued  for  land  subject  to  disposal  or 
sale.     Van  Ness  v.  Rooney  et  al.,  1  :270, 

-  Cal.  — ,  116  Pac.  392. 

Placer   Patent. 

6.  A  placer  patent  establishes 
conclusively  that  the  ground  was  and  is 
placer,  and  evidence  that  placer  mining 
operations  were  never  carried  on  is  im- 
material. Washoe  Copper  Co.  v.  Junila 
et  al.    (Hall  et  al.,  Interveners),   1:451, 

-  Mont.  — ,  115  Pac.  917. 


Exceptions   and    Reservations. 

7.  A  patent  for  land  granted  to 
a  railroad  company  expressly  excluding 
and  excepting  all  mineral  lands  except 
coal  and  iron  lands,  is  held  to  grant 
only  lands  nonmineral,  the  exception 
being  construed  as  part  of  the  descrip- 
tion. Van  Ness  v.  Rooney  et  al.,  1:270, 
—  Cal.  — ,   116   Pac.   392. 

8.  Restrictions  and  exceptions  not 
authorized  by  law,  placed  in  patent  to 
mining  claim  by  officials  of  land  depart- 
ment, are  void.  Butte  City  Smoke-House 
Lode  Cases,  1:520,  6  Mont.  397,  12  Pac. 
858. 

PETITION. 

For  organization  of  irrigation  district, 
see  Irrigation  Districts,  1. 

PIPE   LINES. 
Interstate   Commerce. 

1.  A  statute  conserving  the  sup- 
ply of  natural  gas  of  the  State  of  Okla- 
homa by  prohibiting  interstate  pipe  lines, 
is  unconstitutional  as  a  violation  of  the 
interstate  commerce  clause.  Charles 
West,  Attorney  General  of  the  State  of 
Oklahoma,  Appln't,  v.  Kansas  Natural 
Gas  Co.  et  al.,  1:184,  —  U.  S.  — ,  31 
Sup.  Ct.  564. 

2.  An  Oklahoma  statute  with- 
holding a  charter,  the  right  of  eminent 
domain,  and  the  right  to  use  the  high- 
ways of  the  state  from  corporations  or- 
ganized for  the  purpose  of  operating  in- 
terstate pipe  lines,  held  unconstitutional 
as  discriminating  and  unreasonably 
burdening  interstate  commerce.  Charles 
West,  Attorney  General  of  the  State  of 
Oklahoma,  Appln't,  v.  Kansas  Natural 
Gas  Co.  et  al.,  1:184,  —  U.  S.  — ,  31 
Sup.   Ct.   564. 

Care    in    Operation. 

3.  A  pipe  line  is  not  a  nuisance, 
and  liability  for  fire  caused  by  the 
escape  of  oil  is  limited  to  a  failure  to 
exercise  ordinary  care  in  view  of  the 
dangerous  character  of  the  product  con- 
veyed. Jennings  et  al.  v.  Davis,  1:647, 
187    Fed.   703.      (Annotated) 

4.  An  instruction  that  oil  pipe 
line  proprietors  are  bound  to  use  a  de- 
gree of  care  in  proportion  to  the  risk 
of  danger  attending  the  handling  of  such 
substance  is  erroneous,  because  capable 
of  being  interpreted  as  requiring  too  high 
a  degree  of  care.  Jennings  et  al.  v.  Davis, 
1:647,  187  Fed.  703. 


808 


Water  and  Mineral  Cases. 


5.  The  doctrine  of  res  ipsa  loquitur 
is  not  applicable  to  the  blowing  out  of  a 
gasket  in  a  joint  of  a  pipe  line,  thereby 
permitting  the  escape  of  oil.  Jennings 
et  al.  v.  Davis,   1:647,   187   Fed.  703. 

6.  The  owner  of  a  pipe  line  upon 
being  notified  of  the  escape  of  oil  is 
bound  to  take  precautions  to  prevent 
its  being  ignited  by  the  usual  and  legiti- 
mate use  of  the  premises.  Jennings  et  al. 
v.  Davis,  1:647,  187  Fed.  703. 

7.  Lighting  a  fire  in  the  forge  of 
a  blacksmith  shop  with  notice  of  the 
dangerous  proximity  of  oil  which  escap- 
ed from  a  pipe  line,  and  permitting  pieces 
of  hot  iron  to  fall  through  cracks  in  the 
floor,  igniting  such  oil,  constitute  neg- 
ligence. Jennings  et  al.  v.  Davis,  1 :647, 
187  Fed.  703. 

8.  The  ignition  of  oil  through 
the  negligent  act  of  a  blacksmith  in 
lighting  a  fire  in  his  forge  with  knowl- 
edge of  the  accumulation  beneath  his 
premises  of  oil  escaping  from  a  pipe  line, 
held  the  proximate  cause  of  the  destruc- 
tion of  the  premises  of  a  third  person. 
Jennings  et  al.  v.  Davis,  1:647,  187 
Fed.  703.      (Annotated) 

PLACER    CLAIMS. 

See  Location. 

PLACER   MINES. 

Operation  and  effect  of  placer  patent, 
see  Patents,  6. 

PLATS. 

Necessity  of  filing  plats  of  irrigation 
ditches  on  unsurveyed  land,  see 
Ditches,  10. 

PLEADING. 

In    action    to     restrain     diversion     of 

water,  see  Injunctions,  9. 
In   proceeding   to    enforce    mechanics' 

liens,   see  Mechanics'   Liens,    16. 

General  Denial. 

1.  Under  general  denial  it  may 
be  shown  that  plaintiff  has  no  title  to 
the  property  for  the  conversion  of  which 
the  action  is  brought,  but  that  title 
thereto  is  in  defendant.  Perry  v.  Acme 
Oil  Company,  1:99,  44  Ind.  App.  207, 
88   N.   E.    859. 

Negative   Pregnant. 

2.  An  answer  denying  that  a 
water  company  is  the  owner  entitled  to 


the  exclusive  use  of  all  the  waters  of  a 
lake  is  an  admission  that  the  water  com- 
pany is  entitled  to  substantially  all  of 
the  water.  Duckworth  et  al.  v.  Watson- 
ville  Water  &  Light  Co.  et  al.,  1:140, 
150    Cal.   520,   89    Pac.    338. 

Estoppel. 

3.  The     facts     constituting     an 

estoppel  in  pais  must  be  specially  pleaded. 
Harper  v.  Hill  et  al.,  1  :585,  —  Cal.  — , 
113  Pac.  162. 

Forfeiture. 

4.  Where  a  claim  under  another 
location  is  set  up  under  the  general 
issue  in  denial  of  title,  evidence  showing 
its  forfeiture  is  admissible  without 
pleading  it.  Harper  v.  Hill  et  al.,  1 :585, 
—  Cal.  —,113  Pac.  162. 

POSSESSION. 

Of  mining  claims,  see  Location,  35-38. 

PRESCRIPTION. 

Extent  of  Rights  Acquired. 

1.  The  adverse  use  of  water  for 
the  purpose  of  watering  stock  gives  no 
right  to  use  for  irrigation  or  other  pur- 
poses. Duckworth  et  al.  v.  Watsonville 
Water  &  Light  Co.  et  al.,  1:140,  150 
Cal.  520,  89  Pac.  338. 

Change   of   Channel. 

2.  A  proprietor  of  land  in  which 
a  spring  rises  from  a  stream,  diverting 
such  stream  into  an  artificial  channel 
and  suffering  it  to  remain  in  its  changed 
condition  for  a  period  of  time  exceeding 
the  statute  of  limitations,  as  against 
persons  making  a  beneficial  use  of  the 
water  in  such  new  or  artificial  channel, 
is  estopped  from  returning  the  water  to 
the  natural  or  original  channel  to  the 
injury  or  loss  of  the  persons  making  such 
beneficial  improvements.  Dictum.  Hol- 
lett  v.  Davis,  1:415,  54  Wash.  326,  103 
Pac.  423. 

3.  A  person  making  such  bene- 
ficial use  does  not  have  to  show  a  pre- 
scriptive right  in  himself,  or  a  use  by 
himself  and  predecessors  for  the  period 
of  the  statute  of  limitations,  in  order 
to  prevent  the  return  of  the  water  to 
the  original  channel;  all  he  need  show 
is  that  the  person  diverting  has  per- 
mitted the  stream  to  remain  in  the  new 
channel  for  the  prescriptive  period,  and 
that  he  has  made  a  beneficial  use  of  the 
water.  Dictum.  Hollett  v.  Davis, 
1:415,    54  Wash.   326,    103   Pac.   423. 


Index  to  Cases. 


809 


PRIORITIES. 

Between  mortgage  and  mechanic's  lien, 

see   Mechanics'   Liens,   2. 
As  between  appropriators  of  water,  34, 

35. 


the  issuance  of  a  patent  to  a  railroad 
company  is  the  equitable  owner,  entitled 
to  have  his  title  quieted  as  against  the 
patentee  asserting  ownership  therein. 
Van  Ness  v.  Rooney  et  al.,  1:270,  — 
Cal.  —,116  Pac.   392. 


PROXIMATE    CAUSE. 

See  Negligence. 

PUBLIC   LANDS. 

See  Homestead;  Oil  Claims;  Town 
Sites. 

Validity  of  compromise  between  claim- 
ants,   see    Compromise. 

Validity  of  contract  to  procure  patent 
for  use  of  another,  see  Contracts,  2. 

Right  to  construct  irrigation  ditches 
over,  see  Ditches,  7-12. 

Occupants. 

1.  An  occupant  of  the  public 
lands,  in  the  absence  of  any  showing  un- 
der town-site  or  other  laws,  is  a  licensee, 
subject  to  the  rights  of  one  making  a 
valid  entry  thereon.  Zeiger  v.  Dowdy  et 
al.,   1:409,  —  Ariz.  — ,  114  Pac.  565. 

Homestead    Entry. 

2.  Under  the  homestead  law, 
possessio  pedis  is  not  necessary  to  com- 
plete an  entry.  McLemore  v.  Express  Oil 
Co.,  1:232,  —  Cal.  — ,  112  Pac.  59. 

Entry  for  Another. 

3.  A  contract  by  one  making 
entry  by  virtue  of  soldier's  additional 
scrip,  whereby  he  agrees  to  make  entry 
for  the  use  of  another,  is  not  against 
public  policy  where  it  does  not  appear 
that  the  usee  was  not  qualified  to  take 
patent  in  his  own  name.  Murray  v. 
White  et  al.,  1:538,  —  Mont.  — ,  113 
Pac.   754. 

Dummies. 

4.  In  land  office  practice  dum- 
mies are  either  fictitious  persons  or  those 
having  no  interest,  who  permit  the  use 
of  their  names  for  the  perpetration  of  a 
fraud,  and  sign  papers  and  make  affi- 
davits perfunctorily.  United  States  v. 
Munday  et  al.,    1:722,   186   Fed.   375. 

QUIETING   TITLE. 

Mining   Claim. 

One   in    possession    of    a    mining 
claim   under    a    valid    location    prior   to 


RAILROADS. 

Measure  of  damages  for  diverting  sur- 
face water,  see  Damages. 

Sufficiency  of  delivery  of  deed  to,  see 
Corporations,   3. 

Validity  of  statute  compelling  a  rail- 
road company  to  construct  drainage 
ditch  across  its  right  of  way,  see 
Drainage,    4. 

Within  drainage  district  and  assess- 
ment, see  Drainage  Districts,  14, 
17-22. 

Location  of  mineral  in  railroad 
grants,  see  Location,  1. 

Drainage    of    Surface    Waters. 

1.  If  a  railroad  company  so  con- 
structs its  roadbed  and  ditches  as  to 
divert  surface  water  from  its  usual  and 
ordinary  course,  and  by  its  ditches  or 
artificial  channels  causes  such  water  tff 
be  conveyed  to  a  particular  place  and 
thereby  overflow  the  land  of  another 
proprietor,  which  before  the  construc- 
tion of  such  road,  ditches,  or  channels  did 
not  overflow,  the  company  will  be  liable 
to  such  proprietor  for  the  injury.  Chi- 
cago, Rock  Island  &  Pacific  Railway  Co. 
v.  Davis,  1:566,  26  Okla.  434,  109  Pac. 
214. 

2.  Whether  the  ditches  or  arti- 
ficial channels  be  constructed  on  the  right 
of  way  at  the  time  of  the  construction 
of  the  road  as  a  part  thereof,  or  after- 
wards in  the  operation  or  maintenance 
of  the  same,  is  immaterial.  Chicago, 
Rock  Island  &  Pacific  Railway  Co.  v. 
Davis,  1:566,  26  Okla.  434,  109  Pac. 
214. 

Bridges. 

3.  The  rights  of  a  railroad  com- 
pany to  bridge  over  a  natural  water 
course  crossing  its  right  of  way  are  not 
superior  to  those  of  the  public  to  use  the 
water  course  for  draining  lands.  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Board  of  Su- 
pervisors of  Appanoose  County,  1:459, 
170  Fed.  665. 

Oil  and   Mineral   Rights. 

4.  A  deed  conveying  a  right  of 
way  over  a  tract  of  land,  together  with 
the   right   to   take   and   use   all   timber, 


810 


Water  and  Mineral  Cases. 


earth,  stone  and  mineral  within  the 
same,  to  have  and  to  hold  so  long  as 
used  for  a  railway,  does  not  convey  the 
right  to  take  oil  and  minerals  from 
beneath  the  surface.  Gladys  City  Oil, 
Gas  &  Manufacturing  Co.  et  al.  v.  Right 
of  Way  Oil  Co.  et  al.,  1:499,  —  Tex. 
— ,   137   S.  W.   171. 

5.  The  owner  of  the  fee  has  no 
right  to  enter  upon  the  right  of  way 
of  a  railroad  company  for  the  purpose 
of  boring  for  oil.  Gladys  City  Oil,  Gas 
&  Manufacturing  Co.  et  al.  v.  Right  of 
Way  Oil  Co.  et  al.,  1:499,  —  Tex.  — , 
137  S.  W.  171. 

Drainage   Assessments. 

6.  A  holding  company  of  several 
railroads  has  no  interest  in  cases  aris- 
ing from  drainage  assessment  levied 
against  the  sub-company.  Chicago,  B. 
&  Q.  R.  Co.  v.  Board  of  Supervisors  of 
Appanoose  County,  1:459,  170  Fed.  665. 

RELOCATION. 

See  Location,  50-52. 
Injunction   against   relocation,   see   In- 
junctions, 5. 

RESERVATIONS. 

Evidence     of    reservation    of    mineral 
rights,  see   Conveyances,  7. 

RESERVOIRS. 

Liability  for  Bursting  or  Overflow. 

1.  Under  section  2272,  Mills' 
Ann.  St.,  the  owners  of  reservoirs  are 
liable  for  all  damages  arising  from  leak- 
age or  overflows  of  the  waters  thereof, 
and  this  liability  is  absolute  and  not 
dependent  upon  the  question  of  care  or 
negligence,  and  is  not  relieved  by  the 
fact  that  all  that  skill  and  foresight 
could  have  suggested  to  prevent  the  in- 
jury was  done.  Garnet  Ditch  &  Reser- 
voir Company  v.  Sampson,  1:610,  48 
Colo.  285,  110  Pac.  79,  1136.  (Anno- 
tated ) 

2.  The  use  of  a  natural  hillside 
as  part  of  the  walls  or  construction  of  a 
reservoir  does  not  affect  the  liability  of 
the  owners  for  the  breaking  or  overflow 
thereof.  Garnet  Ditch  &  Reservoir  Com- 
pany v.  Sampson,  1:610,  48  Colo.  285, 
110    Pac.    79,    1136. 

3.  Whether  owner  of  reservoir 
may  or  may  not,  notwithstanding  the 
statute,   be   excused   from   liability   upon 


showing  injury  was  caused  by  act  of 
God,  not  decided.  Garnet  Ditch  &  Res- 
ervoir Company  v.  Sampson,  1:610,  48 
Colo.   285,    110   Pac.   79,    1136. 

4.  Act  making  owners  of  reser- 
voirs absolutely  liable  for  all  damage 
inflicted  by  bursting  or  overflow,  is  con- 
stitutional and  valid.  Garnet  Ditch  & 
Reservoir  Company  v.  Sampson,  1:610, 
48  Colo.  285,  110  Pac.  79,  1136. 

5.  Section  2272,  Mills'  Ann.  St., 
regarding  liability  for  damage  from  leak- 
age or  overflow  of  reservoir  was  not  re- 
pealed by  implication  by  Act  of  1899, 
c.  126,  the  latter  referring  to  reservoirs 
of  certain  capacity  only  and  not  reliev- 
ing the  owners  from  liability.  Garnet 
Ditch  &  Reservoir  Company  v.  Sampson* 
1:610,  48  Colo.  285,  110  Pac.  79,  1136. 

RIGHT  OF  WAY. 

Construction  of  term,  see  Convey- 
ances, 5. 

RIPARIAN    RIGHTS. 

Right  to  make  an  appropriation  after 
grant  of  riparian  rights,  see  Appro- 
priation, 4. 

Construction  of  conveyance  of,  see 
Conveyances,  8. 

Nature   and    Extent. 

1.  A  riparian  owner  of  the 
greater  part  of  a  lake  shore  and  bed 
has  no  right  in  the  water  by  virtue  of 
such  ownership  except  for  actual  bene- 
ficial use  on  the  riparian  land.  Duck- 
worth et  al.  v.  Watsonville  Water  & 
Light  Co.  et  al.,  1:140,  150  Cal.  520, 
89  Pac.  338. 

2.  Riparian  proprietors  along  a 
water  course  formed  by  the  flow  of  wa- 
ter from  a  spring  have  the  right  to  insist 
that  the  spring  be  permitted  to  flow  as 
it  is  wont  to  flow  by  nature,  without  ma- 
terial diminution  or  alteration,  save 
where  the  right  to  divert  is  acquired 
by  grant,  prescription,  or  prior  appro- 
priation. Hollett  v.  Davis,  1:415,  54 
Wash.   326,   103   Pac.   423. 

3.  One  purchasing  the  rights  of 
a  riparian  owner  in  a  lake  need  not 
enter  upon  such  owner's  land  in  order 
to  exercise  the  right,  but  may  take  the 
water  from  any  point  in  the  lake.  Duck- 
worth et  al.  v.  Watsonville  Water  & 
Light  Co.  et  al.,  1:140,  150  Cal.  520,  89 
Pac.  338. 

4.  Where  one  diverts  the  stream 
of  water  flowing  from  a  spring  out  of 
its  original  channel  into  a  new  channel, 


Index  to  Cases. 


811 


where  it  is  permitted  to  flow  uninter- 
ruptedly for  thirty  years,  and  a  third 
person,  relying  upon  the  continuance  of 
the  flow  in  the  new  channel,  acquires  lands 
bordering  on  such  new  channel  and  has 
made  valuable  improvements  thereon, 
which  will  become  valueless  if  the  water 
is  returned  to  the  original  channel,  equity 
will  regard  the  new  or  artificial  channel 
as  the  natural  channel  of  the  stream. 
Hollett  v.  Davis,  1:415,  54  Wash.  326, 
103  Pac.   423. 

Severance  from   Riparian    Land. 

5.  Riparian  rights  exist  solely 
because  land  abuts  on  water,  and  extend 
to  all  water  which  may  be  reached  from 
the  land,  and  not  to  any  specific,  par- 
ticular or  definite  quantity  or  area  of  it. 
Water  cannot  be  severed  from  riparian 
land  and  transferred  to  a  third  person 
so  as  to  give  title  and  the  right  to 
remove  it  as  against  other  riparian  own- 
ers. (Per  Shaw,  J.,  concurring  opinion.) 
Duckworth  et  al.  v.  Watsonville  Water 
&  Light  Co.  et  al.,  1:128,  158  Cal.  206, 
110  Pac.  927. 

Rights   in   Source   Lakes. 

6.  A  lower  riparian  owner  along 
an  intermittent  stream  has  no  right  in 
water  standing  in  pools  or  lakes  above 
his  land;  his  right  is  limited  to  the 
water  naturally  passing  his  land  for  use 
on  his  land  and  he  cannot  transfer  a 
greater  right  to  one  owning  land  on  the 
source  lake.  Duckworth  et  al.  v.  Wat- 
sonville Water  &  Light  Co.  et  al.,  1:140, 
150  Cal.  520,  89  Pac.  338. 

Division    of    Water. 

7.  A  division  of  the  water  flow- 
ing in  a  stream  from  a  spring  diverting 
into  a  new  channel  cannot  be  made 
without  evidence  of  the  quantity  of  water 
required  by  the  upper  proprietor,  the 
proportion  of  water  permitted  to  flow  in 
the  new  channel,  and  the  proportion  of 
that  permitted  to  flow  actually  used  or 
required  by  the  lower  proprietor.  Hollett 
v.  Davis,  1:415,  54  Wash.  326,  103  Pac. 
423. 

RUNNING  STREAM. 

Sufficiency  for  appropriation,  see  Ap- 
propriation, 13. 

SECRETARY    OF    THE     INTERIOR. 

Approval  of,  as  prerequisite  to  con- 
struction of  ditch  on  unsurveyed 
land,    see    Ditches,    11. 


SEEPAGE. 

Appropriation  of  seepage  water,  see 
Appropriation,  15-18. 

SPECIAL   ASSESSMENTS. 

Source  of  Power. 

1.  The  source  of  the  power  of  the 
state  to  assess  lands  for  local  improve- 
ments is  the  governmental  power  of  the 
state  to  tax,  and  to  specially  tax  for  a 
public  purpose  where  the  work  to  be 
done  will  confer  a  special  benefit  upon 
the  property  of  tne  particular  land- 
owner as  distinguished  from  the  general 
good  which  it  will  work  to  all.  People 
ex  rel.  Chapman  v.  Sacramento  Drainage 
District,  1:107,  155  Cal.  373,  103  Pac. 
207. 

Double  Taxation. 

2.  Special  assessments  for  local 
improvement  are  not  double  taxation,  for 
they  are  levied  for  the  special  benefit 
the  land  receives  from  the  improvement 
in  addition  to  the  general  benefits  tor 
which  general  taxes  are  levied.  People 
ex  rel.  Chapman  v.  Sacramento  Drain- 
age District,  1:107,  155  Cal.  373,  103 
Pac.  207. 

SPRINGS. 

Appropriation  of  springs,  see  Appro- 
priation,  15,  21. 

SQUATTERS. 

Rights  to  appropriate  water,  see  Ap- 
propriation,   1-3. 

STATES. 

Power  of  legislature  as  to  drainage, 
see  Drainage,   18-23. 

STATUTES. 

Necessity  of  compliance  with  to  per- 
fect appropriation,  see  Appropria- 
tion,  23-29. 

Construction  of  by  Federal  Courts,  see 
Courts. 

Curative  drainage  statutes,  see  Drain- 
age, 16,  17. 

Title. 

1.  Where   the   act  contains   more 

than    one    subject-matter    and    the    title 


812 


Water  and  Mineral  Cases. 


does  not  express  all,  the  whole  act  is 
not  void.  The  purpose  of  requiring  the 
subject-matter  to  be  expressed  in  the  title 
is  to  prevent  and  check  deceptive  litiga- 
tion. People  ex  rel.  v.  Chapman  v. 
Sacramento  Drainage  District,  1:107, 
155  Cal.  373,  103  Pac.  207. 

Construction. 

2.  The  subsequent  legislative 
acts  of  congress  may  be  considered  in 
arriving  at  the  intent  of  a  particular 
statute.  United  States  v.  Doughten, 
1:736,   186  Fed.  226. 

3.  In  construing  a  statute  the 
language  of  which  is  not  clear,  the  law 
as  it  existed  prior  to  tbe  enactment 
should  be  considered.  National  Mines 
Co.  v.  Sixth  Judicial  District  Court 
Humboldt  Countv  et  al.,  1:169,  —  Nev. 
— ,    116   Pac.   996. 

4.  Where  an  act  is  equally  sus- 
ceptible of  two  constructions  the  court 
will  not  presume  that  a  radical  change 
in  existing  procedure  was  intended. 
National  Mines  Co.  v.  Sixth  Judicial  Dis- 
trict Court  Humboldt  County  et  al., 
1:169,  —  Nev.  — ,    116   Pac.   996. 

5.  Where  the  same  word  or  phrase 
is  used  in  different  parts  of  a  statute,  it 
will  be  presumed  to  be  used  in  the  same 
sense  throughout.  National  Mines  Co. 
v.  Sixth  Judicial  District  Court  Hum- 
boldt County  et  al.,  1:169,  —  Nev.  — 
116  Pac.  996. 

6.  The  word  "maintain"  as  used 
in  statutes  in  reference  to  actions,  com- 
prehends frequently  the  institution  as 
well  as  the  support  of  an  action,  but  in 
the  statute  in  question  it  is  construed 
to  mean  merely  the  support  of  an  ac- 
tion. National  Mines  Co.  v.  Sixth  Ju- 
dicial District  Court  Humboldt  County 
et  al.,   1:169,  —  Nev.  — ,  116  Pac.  996. 

7.  A  court  cannot  override  the 
plain  provisions  of  a  statute,  and  if  it 
is  defective  and  the  rights  of  citizens 
are  not  properly  protected,  resort  must 
be  had  to  the  legislature  for  relief.  Sei- 
bert  v.  Lovell  et  al.,  1:261,  92  Iowa 
507,  61  N.  W.  197. 

8.  Where  no  exception  is  men- 
tioned in  a  statute,  it  must  be  presumed 
none  was  intended,  and  the  courts  Avill 
not  construe  away  the  words  of  the  stat- 
ute by  implying  such  exception.  Garnet 
Ditch  &  Reservoir  Companv  v.  Sampson, 
1:610,  48  Colo.  285,   110  Pac.  79,   1136. 

9.  The  fact  that  legislation  is 
novel,  demands  of  the  court  that  it  be 
scrutinized  with  exceptional  care,  but  it 


does  not  dictate  its  condemnation. 
People  ex  rel.  Chapman  v.  Sacramento 
Drainage  District,  1:107,  155  Cal.  373, 
103  Pac.  207. 

Partial  Invalidity. 

10.  Where  part  of  a  statute  is 
void,  and  so  connected  with  the  general 
scheme  or  object  sought  to  be  attained 
by  the  legislature  that  the  same  would 
not  be  attained  with  the  void  portion 
stricken  out,  the  whole  statute  is  void. 
Ross  v.  Board  of  Supervisors  of  Wright 
County,  1:358,  128  Iowa  427,  104  N.  \\". 
506,   1   L.   R.   A.    (N.   S.)    431. 

Retroactive    Statutes. 

11.  The  Constitution  of  Iowa 
does  not  forbid  the  enactment  of  retro- 
active laws  and  the  supreme  court  has 
frequently  upheld  the  validity  of  such 
statutes.  Ross  v.  Board  of  Supervisors 
of  Wright  County,  1:358,  128  Iowa  427, 
104  N.  W.  506,  1  L.  R.  A.    (N.  S.)    431. 

Special  Acts. 

12.  A  clear  showing  is  required 
on  the  face  of  the  law  itself  before  the 
courts  will  say  fhat  a  special  law  was- 
not  required.  People  ex  rel.  Chapman  v. 
Sacramento  Drainage  District,  1:107, 
155   Cal.  373,   103   Pac.  207. 

Curative   Acts. 

13.  Proceedings  taken  under  a 
void  statute  Avhich  by  a  subsequent 
amendment  is  made  valid,  may  also  be 
validated  by  the  amendment.  Ross  v. 
Board  of  Supervisors  of  Wright  County, 
1:358,  128  Iowa  427,  104  N.  W.  506, 
1    L.   R.   A.    (N.   S.)    431. 

14.  The  legislature  may  by  an 
amendment  cure  a  constitutional  defect 
in  a  statute  the  main  purpose  of  which 
is  within  the  scope  of  legislative  power, 
and  give  such  amendment  a  retroactive 
effect  upon  a  proceeding  already  begun 
and  pending  under  the  original  statute. 
Ross  v.  Board  of  Supervisors  of  Wright 
County,  1:358,  128  Iowa  427,  104  N.  W. 
506,   1  L.  R.  A.    (N.  S.)    431. 

Presumptions. 

15.  Where  the  taking  of  evidence 
is  necessary  before  action  by  the  legisla- 
ture, the  court  will  conclusively  pre- 
sume it  was  taken.  People  ex  rel.  Chap- 
man v.  Sacramento  Drainage  District, 
1:107,  155  Cal.  373,  103  Pac.  207. 


Index  to  Cases. 


813 


STIPULATIONS. 

Operation   and    Effect. 

A  stipulation  of  counsel  to  the 
effect  that  the  interveners  have  acquired 
whatever  rights  were  obtained  by  spec- 
ified locations  does  not  relieve  them  from 
proving  the  validity  of  the  said  locations. 
Washoe  Copper  Co.  v.  Junila  et  al.  (Hall 
et  al.,  Interveners),  1:451,  —  Mont.  — , 
115  Pac.   917. 

SURVEY. 

Construction  of  irrigation  ditches  on 
unsurveyed  public  land,  see  Ditches, 
10. 

Statutory   Provisions. 

1.  A  statute  empowering  a  court, 
upon  proper  showing,  to  order  a  survey 
of  continguous  mining  property  although 
no  suit  is  pending,  is  not  unconstitu- 
tional. National  Mines  Co.  v.  Sixth  Ju- 
dicial District  Court  Humboldt  County 
et  al.,   1:169,  —  Nev.  — ,  116  Pac.  996. 

2.  Section  3  of  an  act  for  the 
protection  of  mines  and  mining  claims, 
giving  the  right  to  obtain  from  court 
an  order  directing  a  survey  of  contiguous 
mining  properties,  held  not  to  authorize 
an  order  except  in  a  pending  suit. 
National  Mines  Co.  v.  Sixth  Judicial  Dis- 
trict Court  Humboldt  County  et  al., 
1:169,  —  Nev.  — ,  116  Pac.  996. 

Equity  Powers. 

3.  Courts  of  equity  have  the  in- 
herent power  to  order  a  survey  of  con- 
tiguous mining  properties  in  cases  pend- 
ing before  them.  National  Mines  Co.  v. 
Sixth  Judicial  District  Court  Humboldt 
Countv  et  al.,  1:169,  —  Nev.  — ,  116 
Pac.  996. 


separately  as  real  property,  and  it  is  the 
duty  of  the  owner  not  only  to  record  the 
instrument  which  conveyed  the  property 
to  him  within  the  time  specified,  but 
also  to  see  that  it  is  duly  listed  for 
taxation  at  the  proper  time.  Mound  City 
Brick  &  Gas  Co.  v.  Goodspeed  Gas  &  Oil 
Co.,   1:244,  —  Kan.  — ,   109  Pac.   1002. 

3.  Where  an  instrument,  called 
a  "lease,"'  by  which  the  owner  of  the  land 
grants,  conveys,  and  warrants  to  another, 
his  heirs,  successors,  and  assigns,  all  of 
the  coal,  oil,  and  gas  under  a  tract  of 
land,  together  with  the  right  to  use  the 
surface  of  the  land  so  far  as  it  is  neces- 
sary in  taking  out  the  minerals  so  con- 
veyed, the  consideration  being  that  the 
lessee  shall  give  the  lessor  certain  quan- 
tities of  the  coal  and  oil  mined,  also 
a  certain  price  per  well  for  each  gas  well 
that  shall  be  drilled  and  used,  and  also 
furnish  the  lessor  gas  sufficient  to  supply 
his  residence,  and  among  other  things, 
contains  a  provision  that  in  a  certain 
contingency  the  lessee  shall  reconvey  the 
property  to  the  lessor;  held,  that  the 
instrument  operated  to  sever  the  coal, 
oil,  and  gas  from  the  remainder  of  the 
land,  and  that  the  interest  segregated 
and  conveyed  became  subject  to  be  sepa- 
rately taxed  and  it  was  incumbent  on  the 
owner  of  the  interest  to  list  it  for  tax- 
ation. Mound  City  Brick  &  Gas  Co.  v. 
Goodspeed  Gas  &  Oil  Co..  1 :  244,  —  Kan. 
— ,  109  Pac.  1002. 

Assessment. 

4.  The  J.  M.  Guffey  Petroleum 
Company  is  sufficientlv  described  for  the 
purpose  of  a  valid  assessment  by  the 
name  "Guffey  Oil  Company."  J.  M. 
Guffey  Petroleum  Co.  v.  Murrel,  Tax 
Collector,  et  al.,  1:380,  —  La.  — ,  53 
So.  70L 


TAXATION. 
Listing   of   Leases   or  Conveyances. 

1.  Chapter  244  of  the  Laws  of 
1S97,  providing  for  the  taxation  of 
strata  of  minerals  in  land  the  title  to 
which  has  been  vested  in  persons  other 
than  the  owner  of  the  surface,  and  im- 
posing penalties  for  its  violation,  applies 
to  oil  and  gas,  as  well  as  to  solid  min- 
erals. Mound  City  Brick  &  Gas  Co.  v. 
Ooodspeed  Gas  &"  Oil  Co.,  1:244,  — 
Kan.  — ,  109  Pac.  1002.      (Annotated) 

2.  When  the  different  strata  are 
severed  by  contract  or  conveyance,  each 
layer  or  stratum  is  subject  to  be  taxed 


Exemptions. 

5.  Exemptions  from  taxation  are 
strictly  construed  and  doubt  as  to  the 
legislative  intent  destroys  the  claim  of 
immunitv.  J.  M.  Guffev  Petroleum  Co. 
v.  Murrel,  Tax  Collector,  et  al.,  1:3S0, 
—  La.  — ,  53  So.  704. 

6.  An  oil  well  is  not  a  mine,  and 
operation  of  a  well  is  not  a  mining 
operation  within  article  230  of  the  Louis- 
iana Constitution  exempting  property 
so  used  from  certain  classes  of  taxes. 
J.  M.  Guffey  Petroleum  Co.  v.  Murrel, 
Tax  Collector,  et  al.,  1:380,  —  La.  — , 
53   So.   704. 


814 


Water  and  Mineral  Cases. 


TENANTS    IN    COMMON. 

Liability  for  maintenance  of  irrigation 
ditch  and  dam,  see  Ditches,  3,  4. 

Right  of  action  for  interference  with 
ditch,  see  Ditches,  5,  6. 

Assessment  work  on  claims  held  in 
common,  see  Assessment  Work,   1-3. 

TOWN    SITES. 

Effect  of  Patent. 

1.  No  interest  in  or  title  to  a 
valid  mining  location  can  be  acquired 
by  a  town-site  patent.  Butte  City 
Smoke-House  Lode  Cases,  1:520,  G 
Mont.  397,  12  Pac.  858. 

2.  There  is  no  conflict  between  a 
mining  claim  patent  and  a  town-site 
patent.  They  evidence  distinct  gTants, 
and  cannot  conflict  with  one  another. 
Butte  City  Smoke-House  Lode  Cases, 
1:520,  6  Mont.  397,  12  Pac.  858. 

3.  Officers  of  land  department 
lnve  no  authority  to  convey  mining 
claims  by  town-site  patent  or  town-site 
by  mining  claim  patent.  Butte  City 
Smoke-House  Lode  Cases,  1:520,  G 
Mont.  397,  12  Pac.  858. 

Adverse   Claim. 

4.  It  is  not  necessary  for  the 
owner  of  a  mining  location  to  file  an 
adverse  claim  to  an  application  for  a 
town-site  patent.  Butte  City  Smoke- 
House  Lode  Cases,  1:520,  6  Mont.  397, 
12  Pac.  858. 


5.  Claimants  of  a  town  site  which 

includes  a  mining  claim  should  file 
adverse  claim  to  application  for  patent 
to  the  mining  claim.  Butte  City  Smoke- 
House  Lode  Cases,  1:520,  6  Mont.  397, 
12  Pac.  858. 


TRIAL. 

Adverse  possession  as  question  of  law, 
see  Adverse  Possession,  2. 

Objections  to  Evidence. 

1.  An  objection  on  the  ground 
that  the  question  is  "improper  and  ought 
to  be  a  different  one"  held  properly  over- 
ruled as  too  general.  Morgan  v.  Myers, 
1 :494,  _  Cal.  — ,  113  Pac.  153. 

Necessity  for  Findings. 

2.  Where  it  is  alleged  that  cer- 
tain water  and  riparian  rights  were  con- 
veyed to  a  certain  party,  and  by  that 
party  to  defendants,  defendants  are 
entitled  to  a  finding  upon  such  issues  so 
as  to  have  rights  vested  under  such  con- 
veyances protected  by  the  decree.  Duck- 
worth et  al.  v.  Watsonville  Water  & 
Light  Co.  et  al.,  1:128,  158  Cal.  206, 
110  Pac.  927. 

WASTE. 
See  Life  Estates,  3. 

WORKING  OF  CLAIM. 

See  Assessment  Work. 


TABLE  OF  CASES 


FOR   MORRISON'S   MINING   REPORTS 


A. 

A.  M.  Holter  Hardware  Co.  v.  Ontario 

Min.    Co.     (1900),    24    Mont.    198, 

20-518. 
Abbey   v.   Wheeler    (1902),   170   N.   Y. 

122,  22-86. 
Abbott  v.  Omaha  Smelting  &  Refining 

Co.  (1876),  4  Neb.  416,  4-8. 
Abel  v.  Love  &  Fowler  (1861),  17  Cal. 

233,    11-350. 
Abinger,  Lord  v.  Ashton   (1872),  L.  R. 

17   Eq.    (Eng.)    358,    6-1. 
Abson    v.    Fenton    (1823),    1    B.    &    C. 

(Eng.)    196,   15-215. 
Ackerman  v.  Hartley    (1850),  8  N.  J. 

Eq.   476,    1-74. 
Acton  v.  Blundell   (1843),  12  M.  &  W. 

(Eng.)    324,   15-168. 
Adair   v.    Brimmer    (1878),    74   N.   Y. 

539,   5-682. 
Adam    v.    Briggs    Iron    Co.    (1851),    7 

Cush.    (Mass.)    361,    13-225. 
Adams  v.  Ore  Knob  Copper  Co.   (U.  S. 

C.  C.  1880),  7  Fed.  634,  3-183. 
Adams  Min.  Co.  v.   Senter   (1872),   26 

Mich.   73,    1-241. 
Adderly  v.   Storm    (1844),  6  Hill    (N. 

Y.)    624,    13-435. 
Ah  He  v.  Crippen   (1861),  19  Cal.  492, 

10-367. 
Ahl's    Appeal    (1875),    79    Pa.    168,    3- 

638. 
Ah    Pong,    Ex    parte    (1861),    19    Cal. 

106,   1-507. 
Ahren  v.  Dubuque  Lead  &  Level  Min- 
ing  Co.    (1878),    48    Iowa    140,    5- 

144. 
Ahrens   v.  Adler    (1867),  33   Cal.   608, 

12-114. 
Ahrns    v.     Chartirs    Valley    Gas     Co. 

(1898),  188  Pa.  249,   19-584. 
Ah  Yew  v.  Choate  (1864),  24  Cal.  562, 

1-492. 
Ajax  Gold-Mining  Co.  v.  Hilkey  (1902), 

30  Colo.   115,   22-259. 


Ajax  Gold-Mining  Co.  v.  Hilkey  (1903), 

31  Colo.  131,  22-585. 
Alderson  v.  Ennor   (1867),  45  111.  128, 

8-526. 

Alexander     v.     Cauldwell     (1881),     83 

N.    Y.    480,    5-650. 
Alexander  v.   Sherman   (1887),  2  Ariz. 

326,    15-638. 
Alford  v.  Barnum   (1873),  45  Cal.  482, 

10-422. 
Allen  v.  Barkley   (1842),  1  Speers   (S. 

C.)    264,    14-246. 
Allen  v.  Gilreath   (1849),  41  N.  C.  252, 

6-470. 
Allison's    Appeal     (1874),    77    Pa.   St. 

221,  11-142. 
Altoona  Quicksilver  Mining  Co.  v.  In- 
tegral     Quicksilver      Mining      Co. 

(1896),  114  Cal.  100,   18-410. 
American   Co.   v.    Bradford    (1865),   27 

Cal.    360,    15-190. 
American  Trust  Co.  of  New  Jersey  v. 

North       Belleville       Quarry       Co. 

(1879),    31   N.    J.    Eq.    89,    10-594. 
Ames   v.   New   Jersey   Franklinite   Co. 

(1858),  12  N.  J.  Ch.  66,   10-434. 
Anaconda  Copper  Mining  Co.  v.  Heinze 

(1902),  27  Mont.  161,  22-346. 
Anderson  v.  Harvey's  Heirs  (1853),  10 

Gratt.    (Va.)    386,   7-291. 
Anderson  v.  Simpson   (1866),  21  Iowa 

399,    9-262. 
Anspach    v.    Bast    (1866),    52    Pa.    St. 

356,    12-110. 
Anthony  v.  Jillson  (1890),  83  Cal.  296, 

16-26. 
Antoine   Co.   v.   Ridge   Co.    (1863),   23 

Cal.   219,    10-97. 
Anvil  Min.  Co.  v.  Humble   (1894),  153 

U.  S.  540,   18-98. 
Ardesco    Oil   Co.   v.    Gilson    (1869),   63 

Pa.    St.    146,    10-669. 
Ardesco    Oil    Co.    v.    North    American 

Oil   &  Mining  Co.    (1870),   66    Pa- 
st.   375,    8-589. 


(815) 


816        Table  of  Cases  foe  Morrison's  Mining  Beports. 


Ardesco  Oil  Co.  v.  Richardson   (1869), 

63    Pa.    St.    162,    11-131. 
Argentine   Min.    Co.    v.     Terrible   Min. 

Co.    (1887),  122  U.  S.  478,   17-109. 

Argonaut  Consol.  Mining  &  Milling  Co. 
v.  Turner  (1897),  23  Colo.  400,  18- 
556. 

Argonaut  Min.  Co.  v.  Kennedy  Mining 
&  Milling  Co.  (1900),  131  Cal.  15, 
21-163. 

Arkwright  v.   Gell    (1839),  5  M.  &  W. 

(Eng.)    203,   15-162. 
Armory    v.    Delamirie    (8    Geo.    I),    1 

Strange  (Eng.)   505,  10-66. 
Armstrong  v.  Auen    (1891),  21  Pittsb. 

Leg.  J.    (Pa.)    395,   17-392. 
Armstrong  v.  Caldwell    (1866),  53  Pa. 

St.   284,    13-252. 
Armstrong  v.  Lake  Champlain  Granite 

Co.   (1895),  147  N.  Y.  495,   18-279. 
Armstrong   v.    Lower    (1882),    6    Colo. 

393,    15-631. 

Armstrong  v.  Lower  (1883),  6  Colo. 
581,    15-458. 

Arnold  v.  Baker  (1877),  6  Neb.  134, 
7-111. 

Arnold  v.  Foot   (1834),  12  Wend.   (N. 

Y.)    329,    8-83. 
Arnold      v.      Richmond      Iron      Works 

(1850),    5    Cush.    (Mass.)    502,    9- 

193. 

Arnold    v.   Stevens     (1839),    24    Pick. 

(Mass.)   106,  1-176. 
Arthur   v.    Griswold    (1874),    55   N.   Y. 

400,    7-46. 
Asbestos    &    Asbestic    Co.    v.    Durand 

(1900),   30   Can.   Sup.  Ct.   285,   20- 

452. 

Ashman  v.  Wigton  (1887),  20  W.  N.  C. 

(Pa.)    280,   17-117. 
Ashworth  v.  Stanwix  (1860),  3  E.  &  E. 

(Eng.)    701,    9-674. 
Astry  v.  Ballard  (28  and  29  Chas.  II), 

2  Mod.    (Eng.)    193,  8-316. 
Atchinson  v.  Peterson  (1874),  20  Wall. 

(U.   S.)    507,   1-583. 

Atkins  v.  Gamble  (1871),  42  Cal.  86, 
13-514. 

Atkins  v.  Hendree  (1867),  1  Idaho  107, 

1  Idaho  (West  Ed.)  95,  2-328. 
Atkinson   v.   Amador   &   S.    Canal   Co. 

(1878),   53   Cal.   102,    13-428. 
Atlas  Min.  Co.  v.  Johnston   (1871),  23 

Mich.  36,   1-388. 
Attersoll  v.   Stevens    (1808),   1   Taunt. 

(Eng.)    183,    10-67. 
Attorney    General    v.    Bay    State    Min. 

Co.    (1868),  99  Mass.  148,   14-158. 


Attwood  v.  Fricot  (1860),  17  Cal.  38, 
2-305. 

Audenried  v.  Woodward  (1860),  28  N. 
J.  L.  265,   12-641. 

Aurora  Hill  Consol.  Min.  Co.  v.  85 
Min.  Co.  (U.  S.  C.  C.  1888),  34 
Fed.    515,    15-581. 

Austin  v.  Huntsville  Coal  &  Mining 
Co.   (1880),  72  Mo.  535,  9-115. 

Aye  v.  Philadelphia  Co.  (1899),  193 
Pa.  457,  20-182. 

Aye  v.  Philadelphia  Co.  (1899),  193 
Pa.    451,    20-177. 


Babcock  v.  Case  (1869),  61  Pa.  St.  427, 
6-618. 

Babcock  v.  Stewart  (1868),  58  Pa.  St. 

179,  11-447. 
Backhouse  v.  Bonomi    (1861),  9  H.  L. 

C.    (Eng.)    503,    13-677. 
Baglan  Hall  Colliery  Co.,  In  re  (1870), 

L.  R.  5  Ch.  (Eng.)   346,  13-261. 
Bagnall   v.    London    &   N.    W.   Ry.    Co. 

(1861),  7  H.  &  N.    (Eng.)    423,  5- 

362. 

Bagnall  v.  London  &  N.  W.  Ry.  Co. 
(1862),  1  H.  &  C.  (Eng.)  544, 
5-366. 

Bagot  v.  Bagot  (1863),  32  Beav.  (Eng.) 
509,  15-130. 

Bagshaw  v.   Seymour    (1858),   4  C.   B. 

N.  S.    (Eng.)    873,   6-510. 
Bailey  v.  Bond    (U.  S.  C.  C.  1896),  77 

Fed.    406,    18-466. 
Bailey  v.   Pittsburg  &  C.   Gas,  Coal  & 

Coke    Co.    (1871),    69    Pa.    334,    3- 

599. 

Bailey  v.  Watkins    (1826),  6  Bligh  N. 

.    S.    (Eng.)    275,    6-387. 
Bainbridge   v.    Gehring    (1869),    3   W. 

Va.   240,   3-40. 
Baird  v.  Williamson    (1863),  15  C.  B. 

N.  S.    (Eng.)    376,  4-368. 
Baker   v.   Chase    (1874),   55   N.   H.   61, 

12-66. 
Baker  v.  Howell    (1821),  6  Serg.  &  R. 

(Pa.)    476,    12-73. 
Baker  v.  King   (1851),  18  Pa.  St.  138, 

14-404. 

Baker  v.  McDowell   (1842),  3  Watts  & 

S.    (Pa.)    358,    13-84. 
Baldwin     v.     United     States     Tel.     Co. 

(1871),  45  N.  Y.  744,  3-70. 
Balfour  v.  Russell  (1895),  167  Pa.  287, 

18-202. 


Table  of  Cases  for  Morrison's  Mining  Keports.        817 


Balliett's   Appeal    (1880),    93    Pa.    434, 

4-151. 
Bank  of  Deer  Lodge  v.  Hope  Min.  Co. 

(1878),    3   Mont.    146,    1-448. 

Bankart  v.  Houghton   (1859),  27  Beav. 

(Eng.)     425,     11-37. 
Bannon  v.  Mitchell  (1880),  6  111.  App. 

17,  2-103. 
Banta  v.   Savage    (1877),  12  Nev.  151, 

7-113. 
Barber  v.   Cazalis    (1866),   30   Cal.   93, 

2-684. 
Barker  v.  Dale   (1870),  3  Pittsb.   (Pa.) 

190,  8-597. 
Barkley  v.  Tieleke  (1874),  2  Mont.  59, 

4-666. 
Barksdale  v.  Finney    (1858),  14  Gratt. 

(Va.)    338,  14-541. 
Barnard  v.  McKenzie    (1878),   4   Colo. 

251,    9-403. 
Barnard  v.  Roane  Iron  Co.    (1886),  85 

Tenn.  139,  17-94. 
Barnes  v.  Sabron   (1875),  10  Nev.  217, 

4-673. 
Barnum    v.    Landon    (1856),    25    Conn. 

137,    14-250. 
Barrs    v.    Lea     (1864),    33    L.    J.    Ch. 

(Eng.)    437,    12-646. 
Bartlett  Coal  &  Mining  Co.  v.  Roach 

(1873),  68  111.  174,   10-682. 
Bartley  v.  Phillips  (1895),  165  Pa.  325, 

18-145* 
Bartley  v.  Phillips  (1897),  179  Pa.  175, 

18-542. 
Barton    Coal    Co.    v.    Cox     (1873),    39 

Md.    1,    10-157. 
Basey   v.    Gallagher    (1874),    20    Wall. 

(U.    S.),    670,    1-683. 
Bash  v.   Cascade  Min.   Co.    (1902),   29 

Wash.  50,   22-299. 
Basin   Mining  &   Concentrating  Co.   v. 
White    (1899),    22    Mont.    147,    19- 
690. 
Basset   v.   Basset    (1774),   Ambl.    (Ap- 
pendix)   (Eng.)    843,   14-359. 

Bassett  v.  Mont  Christo  Gold  &  Silver- 
Mining  Co.  of  Nevada  (1880),  15 
Nev.  293,  4-108. 

Basshor  v.  Dressel  (1871),  34  Md.  503, 
3-591. 

Basshor  v.  Forbes  (1872),  36  Md.  154, 
13-530. 

Batchelder,  Hutchison  &  v.  Common- 
wealth (1876),  82  Pa.  St.  472,  4- 
208. 

Bates  v.  Sierra  Nevada  Lake    Water  & 
Mining    Co.     (1861),    18    Cal.    171, 
1-345. 
W.    &    M—  52 


Bayles  v.   Baxter    (1863),  22  Cal.   575, 

14-561. 
Beals  v.  Cone  (1900),  27  Colo.  473,  20- 

591. 
Bean  v.  Valle    (1829),   2  Mo.  126,    13- 

292. 
Bear  River  &  A.  Water  &  Mining  Co. 

v.    Boles    (1864),    24    Cal.    359,    4- 

592. 
Bear  River  &  A.  Water  &  Mining  Co. 

v.    New   York   Min.    Co.    (1857),    8 

Cal.   327,  4-526. 
Beard  v.  Converse   (1877),  84  111.  512, 

2-670. 
Beatty    v.    Gregory    (1864),    17    Iowa 

109,   9-234. 
Beatty's  Appeal  (1857),  3  Grant  (Pa.) 

213,  9-346. 
Beaufort,  Duke  of  v.  Bates    (1862),   3 

De  G.  F.  &  J.   (Eng.)   381,  6-75. 

Beaumont  v.   Boultbee    (1800),   5  Ves. 

Jr.    (Eng.)    485,   1-253. 
Beaumont   v.   Boultbee    (1802),   7  Ves. 

(Eng.)    599,    1-263. 
Beaumont  v.  Boultbee   (1805),  11  Ves. 

(Eng.)    358,   1-278. 
Beaumont  v.  Field  (1818),  1  B.  &  Aid. 

(Eng.)    247,    1-281. 
Beck  v.  O'Connor  (1898),  21  Mont.  109, 

19-342. 
Beck  v.  Kantorowicz    (1857),  3  Kay  & 

J.    (Eng.)    230,   6-480. 
Becker  v.  Pugh  (1886),  9  Colo.  589,  15- 

304. 
Bedford  v.  Bagshaw  (1859),  4  H.  &  N. 

(Eng.)    538,  6-514. 
Beeker   v.    Hastings    (1866),    15    Mich. 

47,   2-688. 
Beem  v.  McKusick  (1858),  10  Cal.  538, 

2-533. 
Belk  v.   Meagher    (1878),   3   Mont.   65, 

1-522. 
Belk  v.  Meagher  (1881),  104  U.  S.  279, 

1-510. 
Bell  v.  Bed  Rock  Tunnel  &  Mining  Co. 

(1868),    36    Cal.    214,    1-45. 

Bell  v.  Brown    (1863),  22  Cal.  671,  5- 

240. 
Bell  v.   Truit    (1872),   9   Bush.    (Ky.) 

257,    8-649. 
Bell    v.    Schultz    (1861),    18    Cal.    449, 

14-77. 
Bell  v.  Wilson   (1866),  L.  R.  1  Ch.  H. 

L.    (Eng.)     303,    10-415. 

Belle  Greene  Min.  Co.  v.  Tuggle  (1880), 
65    Ga.    652,    5-464. 

Belleville  Stone  Co.  of  New  Jersey  v. 


818       Table  of  Cases  for  Morrison's  Mining  Keports. 


Mooney    (1898),   61   N.   J.   L.   253, 

19-264. 
Bennett  v.  Griffiths  (1861),  30  L.  J.  Q. 

B.  (Eng.)  98,  8-21. 
Bennett  v.  Harkrader    (1895),   158   U. 

S.  441,   18-224. 
Bennett  v.  Shaughnessy  (1889),  6  Utah 

273,    16-276. 
Benninger  v.  Hankee  &  Brown  (1869), 

61  Pa.   St.   343,  3-18. 
Bennitt     v.     Whitehouse     (1860),     28 

Beav.    (Eng.)    119,   8-17. 
Benson  v.  Miners'  Bank  (1853),  20  Pa. 

St.   370,   13-107. 
Benson  Mining  &  Smelting  Co.  v.  Alta 

Mining  &  Smelting  Co.  (1892),  145 

U.   S.  428,   17-488. 
Bentley   v.    Bates    (1840),    4    Y.    &   C. 

Exch.    (Eng.)    182,   10-525. 
Bercich  v.  Marye    (1874),  9  Nev.  312, 

13-544. 
Berea   Stone   Co.   v.   Kraft    (1877),   31 

Ohio   St.   287,   10-16. 
Berg  v.  Boston  &  M.  Consol.  Copper  & 

Silver-Mining  Co.  (1892),  12  Mont. 

212,    17-470. 
Bettman  v.  Harness  (1896),  42  W.  Va. 

433,    18-500. 
Bewick   v.    Fletcher    (1879),    41   Mich. 

625,    6-117. 
Bickel's  Appeal  (1878),  86  Pa.  St.  204, 

14-591. 
Big  Mountain   Improvement  Co.'s  Ap- 
peal (1867),  54  Pa.  St.  361,  5-178. 

Bigley  v.  Risher  &  Wilson   (1869),  63 

Pa.    St.    152,     13-176. 
Bill  v.   Sierra  Nevada  Lake  Water  & 

Mining  Co.  (1859),  1  De  G.  F.  &  J. 

(Eng.)  177,  7-413. 
Billings    v.  Taylor     (1830),    10    Pick. 

(Mass.)    460,  5-65. 
Binney  v.  Ince  Hall  Coal  &  Cannel  Co. 

(1865),   35   L.   J.   Ch.    (Eng.)    363, 

11-410. 
Birchett  v.  Falls  (1835),  21  N.  C.  237, 

6-397. 
Birmingham      Canal      Co.      v.      Lloyd 

(1812),    18    Ves.    Jr.     (Eng.)     515, 

8-166. 
Birmingham,   Corporation   of   v.   Allen 

(1876),  L.  R.  6  Ch.  D.   (Eng.)   284, 

14-14. 
Bishop  v.  Goodwin  (1845),  14  M.  &  W. 

(Eng.)    260,    12-637. 
Bishop  v.   North    (1843),   11  M.  &  W. 

(Eng.)   418,  15-220. 

Bishop   of   London   v.  Web    (1718),   P. 
Wms.   (Eng  *    527,  7-247. 


Black  v.  Elkhorn  Min.  Co.   (1896),  163 

U.   S.  445,    18-375. 
Blackburn  v.  Portland  Gold-Mining  Co. 

(1900),  175  U.  S.  571,   20-358. 
Blackwell  v.  Atkinson   (1859),  14  Cal. 

470,    15-71. 
Blackwell  v.   Overby    (1849),  41  N.  C. 

38,    10-531. 
Blain  v.  Agar    (1826),  1  Sim.    (Eng.) 

37,  6-388. 
Blain  v.   Agar    (1828),  2  Sim.    (Eng.) 

289,   6-393. 
Blaisdell  v.   Stephens    (1879),  14  Nev. 

17,   7-599. 
Blake  v.  Butte  Silver-Mining  Co.  (1877. 

1880),  2  Utah  54,  9-503. 
Blake  v.  Griswold  (1877),  68  N.  Y.  294, 

4-15. 
Blake    v.    Lobb's    Estate     (1896),    110 

Mich.  608,   18-462. 
Blakesley  v.  Whieldon   (1841),  1  Hare 

(Eng.)    176,  8-8. 
Blakley   v.    Marshall    (1896),    174    Pa. 

425,  18-350. 
Blen    v.    Bear    River    &   A.    Water    & 

Mining   Co.    (1862),    20    Cal.    602, 

3-435. 
Blewett  v.  Coleman  (1861),  40  Pa.  St. 

45,  11-160. 
Bliss  v.  Kingdom   (1873),  46  Cal.  651, 

15-239. 
Blodgett  v.   Potosi  Gold  &  Silver-Min- 
ing Co.  (1867),  34  Cal.  227,  3-275. 

Boardman     v.     Thompson     (1879),     3 

Mont.  387,  6-240. 
Boggs  v.   Merced  Min.   Co.    (1859),   14 

Cal.  279,  10-334. 
Boileau  v.  Heath   (1898),  L.  R.  2  Ch. 

(Eng.)    301,    19-349. 
Bolen    v.    San    Gorgonio    Fluming   Co. 

(1880),  55  Cal.  164,  4-116. 
Bond  v.  Mount  Hope  Iron  Co.   (1868), 

99  Mass.  505,  14-500. 

Bonnell  v.  Griswold    (1877),  68  N.  Y. 
294,  4-15. 

Bonner  v.  Meikle   (U.   S.  C.  C.   1897), 

82  Fed.  697,  19-83. 
Bonesteel  v.  Bonesteel  (1872),  30  Wis. 

516,    9-667. 
Book   v.    Justice   Min.   Co.    (1893),    58 

Fed.  106,  17-617. 
Boone   v.    Stover    (1877),   66   Mo.   430. 

9-326. 
Booth    v.    Pollard    (1840),    4    Y.    &    C. 

(Eng.)    61,    13-322. 
Boston      Franklinite     Co.      v.     Condit 

(1869),  19  N.  J.  Eg,.  394.   14-301. 


Table  of  Cases  foe  Morrison's  Mining  Reports.        819 


Boston  &  M.  Consol.  Copper  &  Silver- 
Mining  Co.  v.  Montana  Ore-Pur- 
chasing Co.  (U.  S.  C.  C.  1898), 
89  Fed.  529,   19-480. 

Boston  &  M.  Consol.  Copper  &  Silver- 
Mining  Co.  v.  Montana  Ore-Pur- 
chasing Co.  (1900),  24  Mont.  117, 
20-492. 

Boswell  v.  Green   (1856),  25  N.  J.  L. 

390,  2-362. 
Boswell   v.    Laird    (1857),    8   Cal.    469, 

10-616. 
Boucher  v.  Mulverhill   (1871),  1  Mont. 

306,   12-350. 
Boulder    Valley    Coal    Co.    v.    Tierney 

(1881),  5  Colo.   582,  2-381. 

Bourne     v.     Netherseal     Colliery     Co. 

(1887),  L.  R.   19   Q.   B.   D.    (Eng.) 

357,   15-691. 
Bowes   v.    Ravensworth    (1855),    15   C. 

B.    (Eng.)   512,  2-352. 
Bowker    v.    Goodwin    (1871),    7    Nev. 

135,  10-149. 
Bowler    v.     Wolley     (1812),     15     East 

(Eng.)   444,  13-65. 
Bowman     v.     Bates     (1810),     2     Bibb. 

(Ky.)    47,  6-363. 
Bowman  v.  Irons  (1810),  2  Bibb.  (Ky.) 

78,    13-312. 

Bowyer  v.  Seymour  (1878),  13  W.  Va. 

12,    9-67. 
Boyd    v.    Merriell    (1869),    52    111.    151, 

9-664. 
Boy  Ian  v.  Huguet   (1873),  8  Nev.  345, 

14-503. 
Boyle    v.    Laird    (1853),    2    Wis.    431, 

7-301. 
Bracken  v.   Preston    (1845),  1   Pinney 

(Wis.)    584,   7-267. 
Bracken    v.    Rushville    &    V.    Gravel- 
Road    Co.     (1866),     27     Ind.     346, 

3-273. 
Bradbury    v.    Barnes    (1861),    19    Cal. 

120,    11-354. 
Bradbury    v.    Cronise    (1873),    46    Cal. 

287,   9-366. 
Bradbury  v.  Davis  (1880),  5  Colo.  265, 

3-398. 
Bradley  v.  Ballard   (1870),  55  111.  413, 

3-563. 
Bradley    v.    Harkness    (1864),    26    Cal. 

69,  11-389. 
Bradley    v.    Lee    (1869),    38    Cal.    362, 

4-470. 
Bradley  v.  Poole  (1867),  98  Mass.  169, 

6-581. 
Bradley  v.  South  Carolina  Phosphate  & 

Phosphatic  River  Min.  Co.   (U.  S. 


C.     C.     1874-77),     1     Hughes     72, 
9-323. 
Bragg    v.    Geddes    (1879),    93    111.    39, 
5-624. 

Brainerd   v.    Arnold    (1858),    27   Conn. 
617,   8-478. 

Bramlett  v.  Flick  (1899),  23  Mont.  95, 
20-103. 

Brandling  v.  Owen  (1704),  2  Vern.  Ch. 
(Eng.)    462,   4-129. 

Brandow  v.  Pocatello  Silver-Mining  Co. 
(1870),  6  Nev.  169,  4-337. 

Brandt    v.    McKeever     (1851),    18    Pa. 

St.  70,  9-216. 
Brandt    v.    Wheaton     (1877),    52    Cal. 

430,    1-145. 
Braxton    v.    Bressler     (1872),    64    111. 

488,    13-163. 
Brayton  v.  New  England  Coal-Mining 

Co.    (1858),   11  Gray    (Mass.)    493, 

13-458. 
Breading  v.  Boggs    (1852),  20  Pa.   St. 

33,  11-296. 
Breed   v.   First   Nat.    Bank    of   Central 

City   (1878),  4  Colo.  481,   1-467. 

Breed  v.  Judd   (1854),  1  Gray  (Mass.) 

455,    12-293. 
Breene,     People     ex     rel.     v.     District 

Court     Lake     County     (1900),     27 

Colo.  465,  20-734. 
Brennan  v.  Gaston  (1861),  17  Cal.  372, 

7-424. 
Brennan  v.  Gaston  (1861),  17  Cal.  375, 

7-426. 
Brewer   v.   Marshall    (1868),   19   N.   J. 

Eq.  537,  4-119. 
Brewster  v.  Lathrop  (1860),  15  Cal.  21, 

2-552. 
Brewster     v.     Shoemaker     (1900),     28 

Colo.  176,  21-155. 
Brewster  v.  Sime   (1871),  42  Cal.  139, 

14-573. 
Briggs  v.  Davis  (1875),  81  Pa.  St.  470, 

14-585. 
Briggs  Iron  Co.  v.  North  Adams  Iron 

Co.    (1853),  12  Cush.    (Mass.)    114, 

14-482. 
Brigham  v.  Hawley   (1855),  17  111.  38, 

2-59. 
Broder    v.  Natoma    Water    &    Mining 

Co.   (1875),  50  Cal.  621,  4-670. 

Broder   v.   Natoma  Water   Co.    (1879), 

101  U.  S.  274,   5-33. 
Bronson  v.  Lane  (1879),  91  Pa.  St.  153, 

14-348. 
Brook  v.   Eadley    (1867),   L.  R.   4  Eq. 

(Eng.)    106,    12-649. 


820 


Table  of  Cases  for  Morrison's  Mining  Eeports. 


Brooks  v.   Cook    (1902),  135  Ala.   219, 

22-456. 
Brooks  v.  Kunkle  (1900),  24  Ind.  App. 

624,  20-540. 
Brophy  Min.  Co.  v.  Brophy  &  D.  Gold 

&    Silver-Mining    Co.     (1880),     15 

Nev.  101,  10-601. 
Brough    v.    Homfray    (1868),    L.    R.    3 

Q.  B.    (Eng.)    771,    15-6. 
Brown  v.  Ashley   (1878),  13  Nev.  251, 

12-163. 
Brown    v.    Brown    (1859),    4    H.    &   N. 

(Eng.)    186,    13-669. 
Brown   v.    Byers    (1847),   16   M.    &   W. 

(Eng.)    252,    1-308. 
Brown  v.  Caldwell   (1823),  10  Serg.  & 

R.    (Pa.)    114,    12-674. 
Brown  v.  Corey  (1862),  43  Pa.  St.  495, 

5-368. 
Brown  v.  '49  &  '56  Quartz-Mining  Co. 

(1860),  15  Cal.  152,  9-600. 

Brown  v.  Gaston  &  Simpson  Gold  & 
Silver-Mining  Co.  (1868),  1  Mont. 
57,   1-376. 

Brown    v.    Kidger    (1858),    3   H.    &   N. 

(Eng.)   853,  11-343. 
Brown  v.  Morris   (1880),  83  N.  C.  251, 

3-177. 
Brown  v.  Oregon  King  Min.  Co.  (U.  S. 

C.  C.  1901),  110  Fed.  728,  21-485. 
Brown  v.  Pease  (1870),  104  Mass.  291, 

3-46. 
Brown  v.    Smith    (1858),   10   Cal.   508, 

4-539. 
Brown  v.  Torrence   (1878),  88  Pa.  St. 

186,  10-692. 
Bruff    v.    Mali    (1867),    36    N.    Y.    200, 

6-574. 
Brundage    v.    Adams    (1871),    41    Cal. 

619,  11-470. 
Bryan  v.  Bancks    (1821),  4  B.  &  Aid. 

(Eng.)    401,    6-278. 
Buck   v.   Jones    (1902),   18   Colo.   App. 

250,   22-467. 
Buck    v.    Lodge     (1812),    18    Ves.    Jr. 

(Eng.)   450,   14-623. 
Buckeye  Mining  &  Milling  Co.  v.  Carl- 
son    (1901),    16    Colo.    App.     446, 

21-499. 
Buckley    v.    Howell    (1861),    29    Beav. 

(Eng.)   546,  13-245. 
Buffalo   Zinc  &  Copper  Co.   v.   Crump 

(1902),   70  Ark.   525,   22-276. 
Bullard  v.  Kinney    (1858),  10  Cal.   60, 

11-348. 
Bullion  Beck  &  C.  Min.  Co.  v.  Eureka 

Hill  Min.  Co.   (18S7),  5  Utah    151, 

15-449. 


Bullion  Min.  Co.  v.  Croesus  Gold  & 
Silver-Mining  Co.  (1866),  2  Nev. 
168,    5-254. 

Bunker  Hill  Min.  Co.  v.  Pascoe  (1901), 

24  Utah  60,  21-626. 

Bunker  Hill  &  S.  Mining  &  Concen- 
trating Co.  v.  Empire  State-Idaho 
Mining  &  Developing  Co.  (U.  S.  C. 
C.  1901),  109  Fed.  538,  21-317. 

Burdge  v.  Smith  (1859),  14  Cal.  380, 
12-448. 

Burdge  v.  Underwood  (1856),  6  Cal. 
45,  4-517. 

Burdon  v.  Barkus   (1862),  4  De  G.,  F. 

&  J.    (Eng.)    42,  11-357. 
Burgan  v.   Luell    (1851),  2   Mich.   102, 

11-287. 

Burke  v.   Flood    (1880),  1  Colo.  L.  R. 

71,  5-469. 
Burke    v.   McDonald    (1890),   2    Idaho 

679,     2     Idaho     (West     Ed.)     646, 

17-325. 
Burke   v.    Table   Mountain    Water    Co. 

(1859),  12  Cal.  403,  5-209. 
Burmester   v.   Norris    (1851),   6   Exch. 

(Eng.)   796,  3-449. 
Burnett  v.  Whitesides   (1859),  13  Cal. 

156,    7-407. 
Burns    v.    McCabe    (1872),    72    Pa.    St. 

309,   7-1. 

Burns  v.  Clark  (1901),  133  Cal.  634, 
21-489. 

Burr  v.  Spencer   (1857),  26  Conn.  159, 

8-450. 
Burton  v.   Forest  Oil  Co.    (1903),   204 

Pa.  340,  22-507. 
Burton  v.  Wilkes   (1872),  66  N.  C.  604, 

3-88. 
Burton    v.    Wookey    (1822),    6    Madd. 

(Eng.)    367,    11-342. 
Busenius  v.  Coffee   (1859),  14  Cal.  91, 

5-214. 
Bush  v.   Sullivan   (1851),  3  G.  Greene 

(Iowa)    344,  9-214. 
Bushnell  v.  Church  &  Scoville   (1843), 

15  Conn.  406,  2-479. 
Bushnell  v.  Proprietors  of  the  Ore  Bed 

in  Salisbury   (1862),  31  Conn.  150, 

3-258. 
Bute,  Marquis  of  v.  Thompson   (1844), 

13  M.  &  W.   (Eng.)   487,  8-371. 
Butte   Canal   &   Ditch   Co.    v.   Vaughn 

(1858),  11  Cal.  143,  4-552. 
Butte  Hardware  Co.  v.  Frank   (1901), 

25  Mont.  344,  21-368. 

Butte  Table  Mountain  Co.  v.  Morgan 
(1862),  19  Cal.   609,  4-583. 

Butterfield  v.  Beardsley  (1874),  28 
Mich.  412,   11-495. 


Table  of  Cases  for  Morrison's  Mining  Eeports.        821 


Byard  v.  Holmes    (1868),  33  N.  J.  L. 

119,    6-598. 
Byard  v.   Holmes    (1870),   34  N.   J.   L. 

296,  6-657. 
Eybee  v.  Hawkett   (U.  S.  C.  1882),  12 

Fed.   649,    11-594. 
Byers  v.  Franklin  Coal  Co.  of  Lykens 

Valley     (1870),     106     Mass.     131, 

12-27. 
Byrnes  v.  Douglass  (U.  S.  C.  C.  1897), 

83  Fed.  45,  19-96. 
Bwlch    Y    Plwm    Lead-Mining    Co.    v. 

Baynes     (1867),     L.     R.     2     Exch. 

(Eng.)    324,    6-596. 


Cabe  v.   Dixon    (1859),   57   N.   C.   436, 

13-357. 
Caddick  v.   Skidmore    (1857),  2  De  G. 

&  J.   (Eng.)    52,   13-383. 

Cadwalader's  Appeal  (1870),  64  Pa.  St. 

293,     14-565. 
Cahill  v.  Bennett  (1870),  26  Wis.  577, 

5-664. 
Caldwell  v.  Copeland  (1860),  37  Pa.  St. 

427,    1-189. 

Caldwell  v.  Fulton  (1858),  31  Pa.  St. 
475,   3-238. 

Caley  v.  Portland  (1903),  18  Colo.  App. 
390,  22-595. 

Calhoon  v.  Neely  (1902),  201  Pa.  97, 
21-754. 

Calhoun  Gold-Mining  Co.  v.  Ajax  Gold- 
Mining  Co.  (1899),  27  Colo.  1, 
20-192. 

Calhoun  Gold-Mining  Co.  v.  Ajax  Gold- 
Mining  Co.  (1901),  182  U.  S.  499, 
21-381. 

Calumet  Mining  &  Milling  Co.  v.  Phil- 
lips   (1903),   31   Colo.   287,   22-677. 

Cambers  v.  Lowry  (1898),  21  Mont. 
478,    19-539. 

Cameron  v.  Seaman  (1877),  69  N.  Y. 
396,    13-584. 

Campbell  v.  Bear  River  &  A.  Water  & 
Mining  Co.  (1868),  35  Cal.  679, 
10-656. 

Campbell  v.  Elley  (1897),  167  U.  S. 
116,   18-669. 

Campbell  v.  Fleming  (1834),  1  A.  &  E. 
(Eng.)    40,  6-395. 

Campbell  v.   Gates    (1849),  10  Pa.   St. 

483,  2-502. 
Campbell   v.    Metcalf    (1871),    1    Mont. 

378,  7-656. 
Campbell   v.   Rankin    (1878),   99   U.   S. 

261,  12-257. 


Campbell  v.  West  &  Mathis  (1872),  44 
Cal.  646,  1-218. 

Canfield  v.  Ford  (1858),  28  Barb.  (N. 
Y.)  336,  11-201. 

Canter  v.  Colorado  United  Min.  Co., 
Ltd.  (U.  S.  C.  C.  1888),  35  Fed. 
41,    15-559. 

Caples  v.  Steel  (1879),  7  Or.  491,  15-1. 

Capner  v.  Flemington  Min.  Co.  (1836), 
3  N.  J.  Eq.  467,  7-263. 

Capron  v.  Strout   (1876),  11  Nev.  304, 

9-391. 
Cardelli     v.      Comstock     Tunnel     Co. 

(1901),  26  Nev.  284,  21-699. 
Cardondelet     Iron     Works     v.     Moore 

(1875),  78  111.  65,  2-625. 
Cardoza    v.    Calkins    (1897),    117    Cal. 

106,  18-689. 
Carey  v.  Philadelphia  &  C.  Petroleum 

Co.  (1867),  33  Cal.  694,  1-349. 

Carlyon  v.  Lovering  (1857),  1  H.  &  N. 

(Eng.)    784,    14-397. 
Carnahan  v.  Brown   (1868),  60  Pa.  St. 

23,   5-193. 
Carne  v.  Mitchell    (1846),  15  L.  J.  Ch. 

(Eng.)    287,   2-496. 
Carothers  v.  Connolly   (1872),  1  Mont. 

433,  13-394. 
Carpenter  v.  Biggs   (1873),  46  Cal.  92, 

1-407. 
Carpenter  v.  Black  Hawk  Gold-Mining 

Co.    (1875),  65  N.  Y.  43,   10-582. 
Carpenter's   Heirs  v.   Falls    (1835),   21 

N.  C.  237,  6-397. 
Carr  v.  Chartiers  Coal  Co.    (1855),  25 

Pa.  St.  337,  3-476. 
Carr  v.  Le  Fevre  (1856),  27  Pa.  St.  413, 

3-477. 
Carson  City  Gold  &  Silver-Mining  Co. 

v.  North   Star  Min.   Co.    (U.   S.   C. 

C.  1897),  83  Fed.  658,  19-118. 

Carter  v.   Hoke    (1870),   64  N.  C.   348, 

12-579. 
Carter  v.  Philadelphia  Coal  Co.  (1875), 

77  Pa.   St.  286,  2-287. 
Carter  v.  Rhodes   (1901),  135  Cal.  46, 

21-695. 
Carter  v.  Thompson  (U.  S.  C.  C.  1894), 

65  Fed.  329,   18-134. 
Carter  v.  Whalley   (1830),  1  B.  &  Ad. 

(Eng.)    11,    11-262. 
Caruthers     v.     Pemberton     (1869),     1 

Mont.  Ill,  4-622. 
Casey   v.    Thieviege    (1897),   19    Mont. 

341,  18-624. 
Cassell  v.  Crothers  (1899),  193  Pa.  359, 

20-160. 


822       Table  of  Cases  for  Morrison's  Mining  Reports. 


Castleberry  v.  State  (1879),  62  Ga.  442, 

4-224. 
Castor  v.  McShaffery  (1865),  48  Pa.  St. 

437,  14-498. 
Cate   v.    Sanford    (1879),    54    Cal.    24, 

8-124. 
Catron    v.    Old    (1897),    23    Colo.    433, 

18-569. 
Cedar  Canyon  Consol.  Min.  Co.  v.  Yar- 

wood  (1902),  27  Wash.  271,  22-11. 

Central  Railroad  Co.  of  New  Jersey  v. 
Standard  Oil  Co.  (1880),  33  N.  J. 
Eq.  127,  7-604. 
Central  Railroad  Co.  of  New  Jersey  v. 
Standard  Oil  Co.  (1881),  33  N.  J. 
Eq.  372,  7-628. 
CerruSite  Min.  Co.  v.  Steele  (1902),  18 

Colo.  App.  216,  22-462. 
Chadbourne  v.   Davis    (1886),   9  Colo. 

581,   15-620. 
Chadwick   v.   Coleman    (1876),   80   Pa. 

St.  81,  14-9. 
Chalfant  v.  Williams  (1860),  35  Pa.  St. 

212,  2-548. 
Chamberlain    v.    Collison     (1877),    45 

Iowa  429,  9-36. 
Chamberlain   v.   Parker    (1871),  45  N. 

Y.  569,   10-144. 
Chambers  v.  Smith  (1897),  183  Pa.  122, 

19-146. 
Champion    Min.    Co.    v.    Consolidated 
Wyoming  Gold-Mining  Co.    (1888), 
75  Cal.  78,  16-145. 
Chandelor  v.  Lopus   (1  James  I),  Cor. 

Jac.    (Eng.)    4,   15-70. 
Chapman  v.  Briggs  Iron  Co.   (1856),  6 

Gray  (Mass.)   330,  2-524. 
Chapman   v.   Porter    (1877),   69   N.   Y. 

276,   1-102. 
Chapman   v.    Toy   Long    (U.    S.   C.   C. 

1876),  4  Sawy.  28,   1-497. 
Chappius  v.  Blankman  (1900),  128  Cal. 

362,  20-461. 
Charles   v.   Eshelman    (1879),    5   Colo. 

107,  2-65. 
Chase    v.     Savage     Silver-Mining     Co. 
(1866),  2  Nev.  9,  9-476. 

Chatham      Furnace     Co.     v.      Moffatt 
(1888),  147  Mass.  403,  16-103. 

Cheesman  v.  Hart   (U.  S.  C.  C.  1890), 

42  Fed.  98,  16-263. 
Cheesman  v.  Shreve  (U.  S.  C.  C.  1888), 

37  Fed.  36,  16-79. 
Cheesman    v.    Shreeve    (U.    S.    C.    C. 

1889),  40  Fed.  787,  17-260. 

Cheney  v.   Barber    (1867),  1  Colo.   73, 
2-692. 


Cheney  v.  Barber   (1871),  1  Colo.  256, 

3-66. 
Cherokee  Iron  Co.  v.  Jones   (1874),  52 

Ga.  276,  3-626. 
Chester   Emery   Co.    v.   Lucas    (1873), 

112  Mass.  424,  3-343. 
Chetham  v.  Williamson  (1804),  4  East 

(Eng.)    469,  9-176. 
Chew  v.  Henrietta  Mining  &  Smelting 

Co.    (U.   S.  C.  C.   1880),  2   Fed.   5, 

4-67. 
Chicago  &  A.  Oil  &  Mining  Co.  v.  Unit- 
ed   States    Petroleum    Co.    (1868), 

57  Pa.  St.  83,  12-570. 

Chicago  &  A.  R.  Co.  v.  Chicago,  V.  & 

W.    Coal    Co.    (1875),    79    111.    121, 

2-634. 
Chicago    &   R.    I.    R.    Co.    v.    Northen 

Illinois  Coal  &  Iron  Co.  of  LaSalle 

(1864),  36  111.  61,  15-198. 

Chicago    &    W.    Coal    Co.    v.    Liddell 

(1873),  69  111.  639,  3-126. 
Child    v.    Hugg    (1871),    41    Cal.    519, 

13-512. 
Childers  v.  Neely    (1899),   47  W.  Va. 

70,  20-222. 
Christie's    Appeal    (1877),    85    Pa.    St. 

463,  9-42. 
Cisna  v.   Mallory    (U.   S.  C.   C.   1898), 

84  Fed.  851,  19-227. 

City  of  Tiffin  v.  McCormick  (1878),  34 
Ohio  St.  638,  2-194. 

City  of  Virginia  v.  Chollat-Potosi  Gold 

&  Silver-Mining  Co.  (1866),  2  Nev. 

86,    14-120. 
Clapham   v.    Shillito    (1844),    7    Beav. 

(Eng.)    146,    6-431. 
Clark  v.  Babcock  (1871),  23  Mich.  164, 

8-599. 
Clark  v.  Buffalo  Hump   Min.  Co.  (U.  S. 

C.  C.  1903),  122  Fed.  243,  22-672. 

Clark    v.    Jones    (1875),    49    Cal.    619, 

14-342. 
Clark  v.   McElvy    (1858)',   11  Cal.   154, 

3-254. 
Clark  v.   Willett    (1868),    35   Cal.    534, 

4-628. 
Clarke  v.  Dickson  (1859),  6  C.  B.  N.  S. 

(Eng.)    453,    6-523. 
Clavering    v.    Clavering    (1726),    2    P. 

Wms.    (Eng.)    388,    14-358. 
Clayton  v.  Gregson   (1835),  4  N.  &  M. 

(Eng.)    602,  9-141. 
Cleary  v.  Skiffich  (1901),  28  Colo.  362, 

21-284. 
Clegg     v.     Clegg     (1861),     3     Giffard 

(Eng.)   322,   14-289. 


Table  of  Cases  for  Morrison's  Mining  Eeports.        823 


Clegg    v.    Dearden    (1848),    12    Q.    B. 

(Eng.)   576,  5-88. 
Clegg  v.  Edmondson   (1857),  8  De  G., 

M.  &  G.    (Eng.)   787,  8-180. 
Clegg   v.    Jones    (1878),    43    Wis.    482, 

7-572. 
Clegg  v.  Rowland    (1866),  L.  R.  2  Eq. 

(Eng.)   160,  8-520. 
Clement  v.   Youngman    (1861),  40  Pa. 

St.  341,  5-230. 
Cleveland  &  P.  R.  Co.  v.  Ball  (1856),  5 

Ohio  St.  568,  5-333. 
Clifton   v.   Walmsley    (1794),   5   T.   R. 

(Eng.)    564,  8-323. 
Clowser  v.  Joplin  Min.  Co.  (U.  S.  C.  C. 

1877),  4  Dill.   (U.  S.)    469,   10-222. 
Coal  Creek  Min.  &  Mfg.  Co.  v.  Moses 

(1885),      15      Lea      (Tenn.)      300, 

15-544. 
Coalfield    Co.    v.    Peck    (1881),    98    111. 

139,  13-623. 
Coates  v.  Cheever   (1823),  1  Cow.    (N. 

Y.)   460,  5-55. 
Cochrane   v.    O'Keefe    (1868),    34   Cal. 

554,  3-288. 
Coffman  v.  Robbins   (1880),  8  Or.    278, 

8-131. 
Coker  v.   Simpson    (1857),  7   Cal.   340, 

7-330. 
Cole   Silver-Mining   Co.   v.   Virginia   & 

G.  H.  Water  Co.  (U.  S.  C.  C.  1871), 

1  Sawy.  470,  7-503. 
Cole   Silver-Mining   Co.   v.   Virginia   & 

G.  H.  Water  Co.  (U.  S.  C.  C.  1871), 

1  Sawy.  685,  7-516. 
Coleman   v.   Chadwick    (1876),   80   Pa. 

St.  81,   14-9. 
Coleman  v.  Coleman  (1852),  19  Pa.  St. 

100,   11-183. 
Coleman  v.   Columbia   Oil   Co.    (18C5), 

51  Pa.  St.  74,  3-483. 
Coleman's   Appeal    (1869),    62   Pa.    St. 

252,   14-221. 
Coles  v.  Kennedy  (1890),  81  Iowa  360, 

17-357. 
Colgan  v.   Forest  Oil  Co.    (1899),   194 

Pa.  234,  20-338. 
Colman    v.    Clements    (1863),    23    Cal. 

245,  5-247. 
Colorado    Fuel    &    Iron    Co.    v.    Pryor 

(1898),  25  Colo.  540,  19-544. 
Columbia  Coal  Co.  v.  Miller  (1875),  78 

Pa.  St.  246,  9-21. 
Columbia    Conduit    Co.     v.     Common- 
wealth    (1879),    90    Pa.     St.     307, 

14-197. 
Columbia  Min.  Co.  v.  Holter  (1871),  1 

Mont.  296,  2-14. 


Colvin  v.  McCune  (1874),  39  Iowa  502, 

1-223. 
Collier  v.  Steinhart  (1875),  51  Cal.  116, 

10-1. 
Collins   v.    Case    (18G8),    23   Wis.    230, 

1-91. 
Collins    v.    Chartiers    Valley    Gas.    Co. 

(1891),  139  Pa.  Ill,  17-383. 

Commonwealth  v.  Conyngham   (1870) 

66  Pa.  St.  99,  8-32. 
Commonwealth     v.      Ocean     Oil      Co. 

(1868),  59  Pa.  St.  61,  14-126. 

Commonwealth  v.  Penn  Gas  Coal  Co. 
(1869),  62  Pa.  St.  241,   14-163. 

Commonwealth     ex    rel.    Williams    v. 

Bonnell  (1871),  8  Phila.  (Pa.)  534, 

15-14. 
Commonwealth      ex  rel.    Williams    v. 

Wilkesbarre    Coal    Co.    (1872),    29 

Leg.  Int.   (Pa.)   213,  15-31. 

Comyn  v.   Kyneto    (2   James   I.),  Cro. 

Jac.    (Eng.)    150,  5-198. 
Conant  v.  Smith   (1826),  1  Aik.   (Vt.) 

67,   11-199. 
Conger  v.  Weaver   (1856),  6  Cal.  548, 

1-594. 
Conner  v.  McPhee   (1868),  1  Mont.  73, 

9-570. 
Consolidated    Channel    Co.    v.    Central 

Pac.    R.    Co.    (1876),    51    Cal.    269, 

5-438. 
Consolidated    Gregory    Co.    v.    Raber 

(1872),   1   Colo.    511,    1-405. 
Consolidated      Republican      Mountain 

Min.   Co.  v.   Lebanon   Min.   Co.   of 

New    York    (1886)      9    Colo.    343, 

15-490. 
Consolidated     Wyoming     Gold-Mining 

Co.  v.   Champion  Min.  Co.    (U.   S. 

C.  C.  1894),  63  Fed.  540,  18-113. 

Conway  v.  Hart   (1900),  129  Cal.  480, 

21-20. 
Cook  v.  Andrews  &  Hitchcock   (1880), 

36  Ohio  St.  174,  3-171. 
Cook    v.    Enright    (1901),    134    Cal.    1, 

21-496. 
Cook  v.  Linn    (1842),  19  N.  J.  L.   11, 

2-49. 
Cooper  v.  Lovering    (1870),  106  Mass. 

77,   6-662. 
Cooper  Hill  Min.  Co.  v.  Spencer  (1864) 

25  Cal.  18,  3-267. 
Copper     Globe     Min.     Co.     v.     Allman 

(1901),  23  Utah  410,  21-296. 

Copper  King,  Ltd.  v.  Wabash  Min.  Co. 
(U.  S.  C.  C.  1902),  114  Fed.  991, 
22-164. 


824       Table  of  Cases  for  Morrison's  Mining  Eeports. 


Copper  Min.   Co.   v.   Beach    (1823),   13 

Beav.   (Eng.)   478,  8-326. 
Corbett   v.    Berryhill    (1870),    29    Iowa 

157,   14-671. 
Corey,  State  ex  rel.  v.  Curtis    (1874), 

9  Nev.  325,  3-630. 
Cornelius  v.   Molloy    (1847),   7   Pa.   St. 

293,   6-456. 
Corning  Tunnel  &  Mining  Co.  v.  Pell 

(1878),  4  Colo.  507,  14-612. 
Corporation    of   Birmingham    v.    Allen 

(1876),  L.  R.  6  Ch.  D.  (Eng.)   284, 

14-14. 

Correa  v.  Frietas   (1871),  42  Cal.  339, 
2-336. 

Coryell   v.    Cain    (I860),    16    Cal.    567, 

5-226. 
Cosmopolitan  Min.  Co.  v.  Foote  (U.  S. 

C.  C.  1900),  101  Fed.  518,  20-497. 
Cosmos  Exploration  Co.  v.  Gray  Eagle 

Oil  Co.  (U.  S.  C.  C.  1901),  112  Fed. 

4,  21-633. 
Costa    v.    Silva    (1899),    127    Cal.    351, 

20-330. 
Cotheal  v.  Talmage  (1854),  9  N.  Y.  551, 

12-299. 
Couch   v.   Welsh    (1901),    24   Utah   36, 

21-619. 
Courchaine  v.  Bullion  Min.  Co.  (186S), 

4  Nev.  369,  12-235. 
Cowan   v.   Hardeman    (1862)     26   Tex. 

217,  13-113. 

Cowan  v.  Radford  Iron  Co.   (1887),  83 

Va.  547,   15-453. 
Cowper,  Earl  v.  Baker   (1810),  17  Ves. 

Jr.   (Eng.)   128,  7-253. 

Cox  v.  Bishop    (1857),  8   De  G.,  M.   & 

G.    (Eng.)    815,  8-455. 
Cox    v.    Groshong     (1843),    1    Pinney 

(Wis.)    307,  6-210. 
Coyote    Gold    &    Silver-Mining    Co.    v. 

Ruble   (1880)    8  Or.  284,  4-88. 
Crandall  v.  Woods   (1857),  8  Cal.  136, 

1-604. 
Crane  v.  Windsor   (1878),  2  Utah  248, 

11-69. 
Cranes    Gulch    Min.    Co.    v.    Scherrer 

(1901),  134  Cal.  350,  21-549. 
Crary  v.  Campbell  (1864),  24  Cal.  634, 

3-270. 
Crater   v.    Bininger    (1871),    45    N.    Y. 

545,  11-487. 
Crater  v.   Binninger    (1869),   33   N.   J. 

L.  513,  10-124. 
Craw  v.   Wilson    (1895),   22  Nev.   385, 

18-244. 
Crawford   &   Murray   v.   Wick    (1868), 

18    Ohio    St.    190,    8-541. 


Crawford  v.  Witherbee  (1890),  77  Wis. 

419,   17-348. 
Crawshay  v.  Maule    (1818),  1   Swanst. 

(Eng.)    495,   11-223. 
Creighton  v.  Evans  (1878),  53  Cal.  55, 

8-123. 
Creigbton  v.  Vanderlip  (1871),  1  Mont. 

400,    7-172. 
Crocker  v.  Manley   (1896),  164  111.  282, 

18-485. 
Crompton  v.  Lea   (1874),  L.  R.  19  Eq. 

(Eng.)    115,    6-179. 
Cronin  v.  Bear  Creek  Gold-Mining  Co. 

(1893),  3  Idaho  614,   17-548. 
Cross   v.    McClenahan    (1880),    54   Md. 

21,    12-669. 

Crossman    v.    Pendery     (U.    S.    C.    C. 

1881),  2  McCrary  139,  8  Fed.  693, 

4-431. 
Crouch    v.   Puryear    (1822),    1    Rand. 

(Va.)    258,   15-113. 
Crowley   v.   Genesee   Min.   Co.    (1880), 

55  Cal.  273,  4-71. 

Crowley  v.  Walton  (1901),  23  R.  I.  331, 

21-629. 
Crown  Point  Gold-Mining  Co.  v.  Cris- 

mon   (1901),  39  Or.  364,  21-406. 
Crump     v.     United     States     Min.     Co. 

(1851),  7  Gratt.   (Va.)    352,  3-454. 
Cullacott  v.  Cash  Gold  &  Silver-Mining 

Co.    (1884),  8  Colo.  179,   15-392. 
Cullen    v.    Johnson     (14    Geo.    II.),    2 

Strange    (Eng.)    1142,   1-173. 
Cullins  v.    Flagstaff   Silver-Mining  Co. 

(1877-80),   2   Utah   219,    9-412. 
Cullum  v.  Wagstaff   (1864),  48  Pa.  St. 

300,  2-573. 
Cumberland  Coal  &  Iron  Co.  v.  Parish 

(1875),   42  Md.   598,    1-423. 
Cumberland  Coal  &  Iron  Co.  v.   Sher 

man  (1859),  30  Barb.  (N.  Y.)   553 

1-322. 
Curran  v.  Campion  (U.  S.  C.  C.  1898) 

89  Fed.  125,  19-515. 
Currier  v.   Lebanon   Slate   Co.    (1875) 

56  N.  H.  262,  13-559. 

Curtin  &  Tumlin  v.  Munford  &  Gil 
reath   (1874),  53  Ga.  168,   12-585 

Curtis  v.  Lakin  (U.  S.  C.  C.  1899) 
94  Fed.  251,  20-35. 

Cutter  v.  Demmon  (1873),  111  Mass 
474,  3-119. 


Dahl  v.   Raunheim    (1889),   132   U.   S. 

260,   16-214. 
Dale  v.  Roosevelt  (1821),  5  Johns.  Ch. 

(N.  Y.)   174,  6-369. 


Table  of  Cases  for  Morrison's  Mining  Reports.        825 


Dall    v.    Confidence    Silver-Mining    Co. 

(1867),  3  Nev.  531,  11-214. 
Daniels  v.  Hilgard   (1875),  77  111.  640, 

15-280. 
Daniels  v.  Wilber    (1871),   60   111.   526, 

2-283. 
Dannmeyer   v.    Coleman    (U.   S.   C.   C. 

1882),    11    Fed.    97,    8    Sawy.    51, 

5-474. 
Dark   v.   Johnston    (1867),   55   Pa.    St. 

164,  9-283. 
Darvill  v.  Roper  (1855),  3  Drew.  (Ir.) 

294,   10-406. 
Daubenspeck  v.  Grear    (1861),  18  Cal. 

443,  7-429. 
Davidson  v.  Jordan  (1874),  47  Cal.  351, 

7-54. 
Davidson    v.    Rankin    (1868),    34    Cal. 

503,   13-472. 
Davis  v.  Alvord    (1876),  94  U.  S.  545, 

9-384. 
Davis,  Martin  &,  v.  Browner  (1858),  11 

Cal.  12,   1-613. 
Davis    v.    Butler    (1856),    6    Cal.    510, 

1-7. 
Davis    v.    Flagstaff    Silver-Mining    Co. 

of  Utah,   Ltd.    (1877),   2   Utah   74, 

2-660. 
Davis  v.  Gale  (1867),  32  Cal.  26,  4-604. 
Davis  v.  Henry   (1871),  4  W.  Va.  571, 

6-680. 
Davis  v.  Shepherd   (1865),  L.  R.  1  Ch. 

(Eng.)    410,    6-24. 
Davis  v.  Shepherd  (1903),  31  Colo.  141 

22-575. 
Davis    v.    Treharne     (1881),    L.    R.    6 

App.  Cas.   (Eng.)    4G0,   14-60. 
Day  v.  Holmes  (two  cases)   (1869),  103 

Mass.  306,  2-276. 
Dayton    Gold    &    Silver-Mining   Co.    v. 

Seawell  (1876),  11  Nev.  394,  5-424. 
Dean     v.    Thwaite    (1855),    21     Beav. 

(Eng.)    621,    1-77. 
Dean    &    Chapter    of    Ely    v.  Warren 

(1741),  2  Atk.    (Eng.)    189,  4-233. 
Decker  v.  Howell   (1872)    42  Cal.  636, 

11-492. 
De  Costa  v.  Massachusetts  Flat  Water 

&  Mining  Co.    (1861),  17  Cal.  613, 

10-93. 
Deeney   v.   Mineral   Creek   Milling   Co. 

(1902),   11   N.   M.   279,    22-47. 
Deep    River    Gold-Mining    Co.    v.    Fox 

(1845),  39  N.  C.  61,   1-296. 
Deer  Lodge,  Bank  of  v.  Hope  Min.  Co. 

(1878),  3  Mont.  146,  1-448. 
Deidesheimer,     Ex     parte     (1879),    14 

Nev.  311,  8-41. 


Delaware,  L.   &  W.   R.   Co.   v.   Oxford 

Iron  Co.    (1880),  33  N.  J.  Eq.  192, 

9-417. 
Delaware   &   H.    Canal   Co.   v.    Carroll 

(1879),  89  Pa.  St.  374,   10-47. 
Delmonico  v.  Roudebush    (U.  S.  C.  C. 

1880),   2  McCrary  18,   3-195. 
Del    Monte    Mining    &    Milling    Co.    v. 

Last  Chance  Mining  &  Milling  Co. 

(1898),  171  U.  S.  55,   19-370. 
Del    Monte    Mining    &   Milling    Co.    v. 

New  York  &  L.  C.  Min.  Co.   (U.  S. 

C.  C.   1895),   66   Fed.   212,    18-188. 
Denniston  v.  Haddock  (1901),  200  Pa. 

426,  21-513. 
De  Noon  v.  Morrison    (1890),   83   Cal. 

163,   16-33. 
Densmore  Oil  Co.  v.  Densmore  (1870), 

64  Pa.  St.  43,  3-569. 
De  Pass's  Case   (1859),  4  De  G.  &  J. 

(Eng.)    544,    2-36. 
Depuy  v.  Willams  (1864),  26  Cal.  310, 

5-251. 
Derry  v.  Ross  (1881),  5  Colo.  295,  1-1. 
Deserant  v.  Cerillos  Coal-Railroad  Co. 

(1900),  178  U.  S.  409,  20-573. 
Desloge      v.      Pearce      &     Willoughby 

(1866),   38  Mo.   588,   9-247. 
Dexter     Lime     Rock     Co.     v.     Dexter 

(1859),  6  R.  I.   353,  4-291. 
Diamond   Iron-Mining  Co.   v.   Buckeye 

Iron-Mining  Co.    (1897),   70   Minn. 

500,  19-197. 
Diamond    Plate    Glass    Co.    v.    Curless 

(1899),  22   Ind.  App.   346,    19-682. 
Dickenson    v.    Bolyer    (1880),    55    Cal. 

285,  9-415. 
Dickson  v.  Moffat  (1879),  5  Colo.  114, 

12-666. 
Dimick  v.  Shaw  (U.  S.  C.  C.  1899),  94 

Fed.  266,  20-49. 
Dobschuetz  v.  Holliday   (1876),  82  111. 

371,   6-108. 
Dodge    v.    Marden    (1879),    7    Or.    456, 

1-63. 
Doe  v.  Sanger  (1890),  83  Cal.  203,  17- 

298. 
Doe  v.  Waterloo  Min.  Co.   (U.  S.  C.  C. 

1895),  70  Fed.  455,  18-265. 
Donovan  v.  Campion  (U.  S.  C.  C.  1898), 

85  Fed.   71,    19-247. 
Donovan   v.   Consolidated   Coal   Co.   of 

St.  Louis    (1900),  187   111.   28,   21- 

91. 
Double    v.    Union    Heat    &    Light    Co. 

(1896),  172   Pa.   388,    18-327. 
Dougherty   v.   Creary    (1866),   30   Cal. 

290,    1-35. 


826       Table  of  Cases  for  Morrison's  Mining  Eeports. 


Dougherty  v.   Haggin    (1880),   56   Cal. 

522,    15-211. 
Douglass  v.   Ireland    (1878),  73   N.   Y. 

100,   4-32. 
Dousman  v.  Wisconsin  &  L.  S.  Mining 

&    Smelting    Co.    (1876),    40    Wis. 

418,    13-572. 

Douthett  v.  Fort  Pitt  Gas  Co.    (1902), 

202  Pa.  416,  22-204. 
Douty  v.   Bird    (1869),  -60  Pa.   St.   48, 

14-454. 

Dower  v.   Richards    (1894),   151  U.   S. 
658,    17-704. 

Doyle     v.      Peerless      Petroleum      Co. 

(1865),  44  Barb.    (N.  Y.)    239,   14- 

569. 
Drake     v.     Gilpin     County     Min.     Co. 

(1891),  16  Colo.  231,  17-396. 
Draper    v.    Douglass     (1863),    23    Cal. 

347,  5-601. 
Drummond    v.    Long    (1886),    9    Colo. 

538,    15-510. 
Dudley,   Lord   v.   Lord  Warde    (1751), 

1  Ambl.    (Eng.)    113,   6-34. 
Duff  v.  Maguire   (1871),  107  Mass.  87, 

12-353. 
Duffield  v.   Brainerd    (1878),  45  Conn. 

424,    11-526. 

Duffield  v.  Hue  (1889),  129  Pa.  94,  17- 
253. 

Dugdale  v.  Robertson  (1857),  3  Kay  & 

J.    (Eng.)    695,    13-662. 
Duggan  v.  Davey   (1886),  4  Dak.   110, 

17-59. 
Duke  of   Beaufort  v.   Bates    (1862),   3 

De  G.,  F.   &  J.    (Eng.)    381,   6-75. 
Duncan  v.  Gulton  (1900),  15  Colo.  App. 

140,    20-522. 
Dundas       v.        Muhlenberg's       Ex'rs 

(I860),   35   Pa.   St.   351,    14-437. 
Dunning    v.    Rankin    (1862),    19    Cal. 

641,    9-455. 
Du  Prat  v.  James  (1884),  65  Cal.  555, 

15-341. 
Durant  v.  Corbin    (U.  S.  C.  C.  1899), 

94  Fed.  382,   20-84. 
Durant  Min.  Co.  v.  Percy  Consol.  Min. 

Co.    (U.    S.    C.    C.    1899),    93    Fed. 

166,  20-27. 
Durham  v.  Carbon  Coal  &  Mining  Co. 

(1879),  22  Kan.  232,   15-380. 
Duryea   v.    Burt    (1865),    28    Cal.    569, 

11-395. 
Dutch     Flat     Water     Co.     v.     Mooney 

(1859),  12  Cal.  534,  6-303. 


Eagan  v.   Delaney    (1860),  16  Cal.   86, 
5-223. 


Eagle    v.    Bucher    (1856),    6    Ohio    St. 

295,    12-330. 
Earl  Cowper  v.  Baker   (1810),  17  Ves. 

Jr.    (Eng.)    128,  7-253. 
Earl  of  Huntington  &  Lord  Montjoy's 

Case    (25    Eliz.),   4    Leon.    (Eng.) 

147,  9-175. 
Earl  of  Lonsdale  v.  Curwen   (1799),  3 

Bligh    O.    S.     (Eng.)     168,    7-693. 
Earl      of      Mansfield      v.      Blackburne 

(1840),    6    Bing.    N.    Cas.    (Eng.) 

426,    6-36. 
Earl    of    Rosse    v.    Wainman     (1845), 

14   M.    &   W.    (Eng.)    859,    10-398. 
Early    v.     Friend     (1860),     16     Gratt. 

(Va.)    21,   14-271. 

East  v.  Ealer  (1872),  24  La.  Ann.  129, 
2-274. 

East  Jersey  Iron  Co.  v.  Wright  (1880), 
32   N.   J.   Eq.   248,   9-332. 

Eaton  v.  Norris    (1901),  131  Cal.  561, 
21-205. 

Ecker     v.     Moore     (1850),     2     Pinney 

(Wis.)    425,    12-685. 
Ecclesiastical   Com'rs  for    England    v. 

North  Eastern  Ry.  Co.    (1877),  L. 

R.  4  Ch.  D.   (Eng.)   845,  12-609. 
Eclipse   Oil   Co.   v.   Garner    (1903),   53 

W.    Va.    151,    22-626. 
Eclipse  Oil  Co.  v.  South  Penn  Oil  Co. 

(1899),  47  W.  Va.  84,  20-234. 
Eddy   v.    Simpson    (1853),   3   Cal.   249, 

15-175. 

Edelman   v.   Latshaw    (1897),   180   Pa. 

419,    18-608. 
Edgewood  R.   Co.'s  Appeal    (1875),   79 

Pa.  St.  257,  5-406. 
Edmonds  v.   Mounsey    (1896),   15   Ind. 

App.    399,    18-384. 
Edwards   v.   Allouez   Min.   Co.    (1878), 

38  Mich.  46,  7-577. 
Edwards   v.    Iola   Gas    Co.    (1902),    65 

Kan.  362,  22-293. 
Efford   v.    South   Pacific   Coast  R.   Co. 

(1877),  52  Cal.  277,  7-557. 

Ege   v.    Kille    (1877),    84    Pa.    St.    333, 
10-212. 

Eilers  v.  Boatman  (1883),  3  Utah  159, 
15-462. 

Eilers   v.   Boatman    (1884),   111   U.    S. 

356,    15-471. 
Elder  v.   Horseshoe  Mining  &  Milling 

Co.    (1901),   15   S.   D.   124,   21-510. 
Eldridge  v.  Wright  (1860),  15  Cal.  89, 

7-418. 
Elias   v.    Snowdon    Slate   Quarries   Co. 

(1879),  L.  R.  4  App.  Cas.   (Eng.) 

454,    15-143. 


Table  of  Cases  for  Morrison's  Mining  Reports.        827 


Elliott,     State     ex     rel.     v.     Guerrero 

(1877),   12   Nev.    105,    9-660. 
Ellis  v.  Duncan    (1855),  21  Barb.    (N. 

Y.)    230,   15-182. 
Ellis    v.     Schmoeck     (1829),    5    Bing. 

(Eng.)    521,    13-259. 
Ellison  v.  Jackson  Water  Co.    (1859), 

12    Cal.    542,    4-559. 
Elwell   v.   Crowther    (1862),   31   Beav. 

(Eng.)    163,   7-438. 

Emerson  v.  McWhirter  (1901),  133  Cal. 
510,   21-470. 

Emery  v.  Owings  (1847),  6  Gill  (Md.) 
191,    8-378. 

Emmons  v.  McKesson  (1859),  58  N. 
C.  92,  7-409. 

Empire  Milling  &  Mining  Co.  v.  Tomb- 
stone Mill  &  Mining  Co.  (U.  S.  C. 
C.   1900),  100   Fed.  910,  20-443. 

Empire  State-Idaho  Mining  &  Develop- 
ing Co.  v.  Bunker  Hill  &  S.  Min- 
ing &  Concentrating  Co.  (U.  S.  C. 
C.   1902),  114  Fed.   417,   22-104. 

Empire  State-Idaho  Mining  &  Develop- 
ing Co.  v.  Bunker  Hill  &  S.  Min- 
ing &  Concentrating  Co.  (U.  S.  C. 
C.   1902),  114   Fed.   420,   22-132. 

Empie  State-Idaho  Mining  &  Develop- 
ing Co.  v.  Bunker  Hill  &  S.  Min- 
ing &  Concentrating  Co.  (U.  S.  C. 
C.   1903),   121  Fed.   973,   22-560. 

English  v.  Johnson  (1860),  17  Cal.  107, 
12-202. 

Ennor  v.  Barwell  (1860),  1  De  G.,  F. 
&   J.    (Eng.)    529,    12-101. 

Ensminger  v.  Mclntire  (1863),  23  Cal. 
593,    14-440. 

Enterprise  Min.  Co.  v.  Rico-Aspen 
Consol.  Min.  Co.  (1897),  167  U.  S. 
108,    18-661. 

Enterprise  Oil  &  Gas  Co.  v.  National 

Transit   Co.    (1896),    172    Pa.    421, 

18-312. 
Enterprise       Transit       Co.'s       Appeal 

(1880),    11    Rep.     (Pa.)     109,     12- 

599. 
Erhardt  v.  Boaro   (U.  S.  C.  C.  1881),  2 

McCrary    141,    4-432. 
Erhardt  v.  Boaro  (U.  S.  C.  C.  1881),  3 

McCrary  19,   8   Fed.   860,   4-434. 
Erhardt    v.    Boaro    (1885),    113    U.    S. 

527,    15-472. 
Erhardt    v.    Boaro    (1885),    113    U.    S. 

537,    15-447. 
Ernest  v.  Vivian   (1864),  33  L.  J.  Ch. 

(Eng.)    513,  8-205. 
Erskine  v.  Forest  Oil  Co.    (U.  S.  C.  C. 

1895),    80    Fed.    583,    18-297. 


Erwin's   Appeal    (1887),   20   W.   N.   C. 

(Pa.)    278,    16-91. 
Escoubas    v.    Louisiana    Petroleum    & 

Coal-Oil   Co.    (1870),   22   La.   Ann. 

280,    12-343. 

Eshelman  v.  Thompson  (1869),  62  Pa. 
St.  495,  4-146. 

Esmond  v.  Chew  (1860),  15  Cal.  137, 
5-175. 

Eureka  Coal  Co.  v.  Braidwood   (1874), 

72   111.   625,   4-148. 
Eureka  Consol.  Min.  Co.  v.  Richmond 

Min.   Co.  of  Nevada    (U.   S.   C.  C. 

1877),  4  Sawy.  302,  9-578. 

Eureka  Consol.  Min.  Co.  v.  Richmond 
Min.  Co.  (U.  S.  C.  C.  1878),  5 
Sawy.   121,   8-145. 

Eureka  Hill  Min.  Co.  v.  City  of  Eureka 
(1900),  22  Utah  447,  21-131. 

Evans'  Appeal  (1874),  77  Pa.  St.  221, 
11-142. 

Evans'  Appeal   (1876),  81  Pa.  St.  278, 

8-255. 
Evans  v.  Haefner   (1859),  29  Mo.  141, 
5-344. 

Evans  v.  Myers  (1855),  25  Pa.  St.  114, 

15-243. 
Everett    v.    Hydraulic    Flume    Tunnel 

Co.    (1863),   23   Cal.   225,   4-589. 
Ezzard     v.    Findley     Gold-Mining    Co. 

(1885),  74  Ga.   520,   17-40. 


F. 


Fabian  v.  Collins  (1878),  3  Mont.  215, 

5-20. 
Fair  v.   Stevenot    (1866),  29  Cal.   486, 

11-11. 
Fairbanks    v.     Woodhouse     (1856),    6 

Cal.   433,   12-86. 
Fairchild     v.     Dunbar     Furnace     Co. 

(1889),  128  Pa.  485,   17-242. 
Fairplay  Hydraulic  Min.  Co.  v.  West- 
on (1901)    29  Colo.  125,  21-725. 
Faith  v.  Richmond  (1840),  11  A.  &  E. 

(Eng.)    339,    11-265. 
Falls  v.  Carpenter  (1835),  21  N.  C.  237, 

6-397. 
Falls  v.  McAfee   (1842),  24  N.  C.  236, 

7-639. 
Farnum     v.     Piatt      (1829),     8     Pick. 

(Mass.)     339,    8-330. 
Farnum    v.    United    States    (1871),    1 

Colo.  309,  4-192. 
Faulds    v.    Yates    (1870),    57    111.    416> 

3-551. 
Fawcett     v.     Whitehouse      (1820),     1 

Russ.  &  M.    (Eng.)    132,   11-250. 


828       Table  of  Cases  for  Morrison's  Mining  Reports. 


Faxon  v.  Barnard  (U.  S.  C.  C.  1880), 
2  McCrary  44,  4  Fed.  702,   9-515. 

Fay  v.  The  New  World  (1850),  1  Cal. 
348,  2-417. 

Featherstonhaugh  v.  Lee  Moor  Porce- 
lain-Clay Co.  (1865),  L.  R.  1  Eq. 
(Eng.)    318,   3-496. 

Federal  Oil  Co.  v.  Western  Oil  Co. 
(U.  S.  C.  C.  1902),  112  Fed.  373, 
22-25. 

Federal  Oil  Co.  v.  Western  Oil  Co. 
(U.  S.  C.  C.  1902).  121  Fed.  674. 
22-429. 

Feely  v.  Shirley  (1872),  43  Cal.  369. 
12-132. 

Felger  v.  Coward  (1868),  35  Cal.  650, 
5-273. 

Fereday  v.  Wightwick   (1829),  1  Russ. 

&  M.    (Eng.)    45,    11-247. 
Ferron    v.    Sturgeon    (1859),    10    Iowa 

586,  4-319. 

Feversham   v.   Emerson    (1855),   24   L. 

J.   N.    S.    (Eng.)    254,    5-500. 
Field  v.   Beaumont    (1818),  1   Swanst. 

(Eng.)    204,  7-257. 
Field  v.  Pierce   (1869),  102  Mass.  253, 

3-535. 
Finding  v.   Hartman    (1890),   14   Colo. 

596,  17-333. 
Findlay    v.    Smith     (1818),    6    Munf. 

(Va.)    134,    13-182. 
Finerty   v.   Fritz    (1879),    5   Colo.    174, 

1-437. 
Firmstone  v.  De  Camp  (1865),  17  N.  J. 

Eq.  317,  10-43  9. 
Firmstone    v.    Wheeley    (1844),    2    D. 

&  L.    (Eng.)    203,    12-76. 
First  Nat.  Bank  v.  Bissell  (U.  S.  C.  C. 

1880),  2   McCrary   73,   4   Fed.   694, 

11-546. 
First    Nat.    Bank    of   Helena    v.    How 

(1872),  1  Mont.  604,   12-134. 
First  Nat.  Bank  of  Plymouth  v.  Price 

1880),   2   McCrary   73,   4   Fed.   694, 

11-546. 

Fisher  v.   Guffey    (1899),   193   Pa.   393, 

20-174. 
Fisher  v.  Milliken  (1848),  8  Pa.  St.  Ill, 

8-395. 
Fisher  v.  Worrall    (1843),  Watts  &  S. 

(Pa.)    478,   14-624. 
Fissure  Min.  Co.  v.  Old  Susan  Min.  Co. 

(1900),   22   Utah   438,   21-125. 
Fitch  v.  Archibald   (1861),  29  N.  J.  L. 

160,   2-555. 
Fitz  v.  Bynum  (1880),  55  Cal.  459,  13- 

612. 
Fitzgerald  v.  Urton  (1855),  5  Cal.  308, 

12-198. 


Flagg,  State  ex  rel.  v.  Lady  Brvan  Min. 

Co.  (1868),  4  Nev.  400,  3-526. 
Flagstaff   Silver-Mining   Co.   v.    Tarbet 

(1878),  98  U.  S.  463,  9-607. 
Flagstaff    S.   M.    Co.    of   Utah,   Ltd.    v. 

Patrick     (1877-80),     2     Utah     304, 

4-19. 

Flaherty   v.   Gwinn    (1878-79),   1   Dak. 

509,    12-605. 
Fleeson    v.    Savage    Silver-Mining    Co. 

(1867),  3  Nev.   157,   8-153. 
Fletcher    v.    Great    Western    Ry.    Co. 

(1859),  4  H.  &  N.   (Eng.)   242,  12- 

521. 

Fletcher  v.  Smith  (1877),  L.  R.  2  H.  L. 

(Eng.)    781,    5-78. 
Fletcher   &  Bros.   v.   Hawkins    (1852), 

2  R.  I.  330,  11-290. 
Flint   v.    Brandon    (1803),    8   Ves.   Jr. 

(Eng.)     159,    13-308. 
Flint,  Johnson  &  Co.  v.  Eureka  Marble 

Co.    (1881),   53   Vt.    669,    11-588. 
Fogus   v.   Ward    (1875),   10   Nev.   269, 

5-1. 

Foley  v.  Addenbrooke  (1844),  13  M.  & 

W.    (Eng.)    174,   8-349. 
Foley   v.    Fletcher    (1858),   3   H.   &  N. 

(Eng.)    769,  4-130. 
Foltz,   Norris   &  v.    Tayloe    (1868),    49 

111.  17,  1-383. 

Foot  v.    Marsh    (1873),   51   N.   Y.    288, 
10-185. 

Foote  v.   National  Min.   Co.    (1876),   2 

Mont.    402,    9-605. 
Forbes  v.  Gracey  (1876),  94  U.  S.  762, 

14-183. 
Foreman  v.  Bigelow  (U.  S.  C.  C.  1878), 

75  Cent.  L.  J.  (Mass.)  430,  13-269. 

Forsyth    v.    North    American    OiJ    Co. 
(1866),   53   Pa.   St.   168,    11-115. 

Forsyth   v.    Wells    (1862),    41    Pa.    St. 

291,    14-493. 
Fort     Scott     Coal     &     Mining     Co.     v. 

Sweeney   (1875),  15  Kan.  244,   12- 

166. 
Foster  v.  Weaver    (1888),   118   Pa.   St. 

42,  15-551. 
Fothergill  v.   Phillips    (1871),  L.  R.   6 

Ch.  App.  (Eng.)  770,  14-677. 
420  Min.  Co.  v.  Bullion  Min.  Co.  (1874), 

9  Nev.  240,   1-114. 
420  Min.  Co.  v.  Bullion  Min.  Co.  (U.  S. 

C.  C.  1876),  3  Sawy.  634,   11-608. 

Fox  v.  Frith   (1842),  1  C.  &  M.   (Eng.) 

502,    11-277. 
Fox    v.    Mackay    (1899),    125    Cal.    54, 

20-89. 


Table  of  Cases  for  Morrison's  Mixing  Eeports. 


829 


Fraler     v.     Sears    Union    Water     Co. 

(1857),  12  Cal.  555,   12-98. 
Frank    G.    &    S.    Min.    Co.    v.    Larimer 

M.    &   S.   Co.    (U.    S.    C.    C.    1881), 

8  Fed.  724,  2  McCrary  138,  1-150. 
Franklin  Coal  Co.  v.  McMillan   (1878), 

49  Md.  549,   10-224. 
Franklin  Min.   Co.   v.    O'Brien    (1896), 

22  Colo.  129,   18-331. 
Franks'    Oil    Co.    v.    McCleary    (1869), 

63  Pa.  St.  317,   13-477. 
Freck  v.  Locust  Mountain  Coal  &  Iron 

Co.    (1878),   86   Pa.    St.   318,    9-57. 
Freeland  v.  Hoffman  (U.  S.  C.  C.  Colo. 

1880),    13-289. 
Freezer    v.    Sweeney    (1889),    8    Mont. 

508,    17-179. 
Fremont    v.    Crippen     (1858),    10    Cal. 

212,    6-221. 
Fremont  v.  Flower  (1861),  17  Cal.  199, 

12-418. 
Fremont  v.  Merced  Min.  Co.   (1858),  9 

Cal.   19,   9-659. 
Fremont  v.  Merced  Min.  Co.   (U.  S.  C. 

C.  1858),  1  McAllister  267,  7-332. 
Fremont  v.  Seals   (1861),  18  Cal.  433, 

11-632. 
French  v.  Brewer   (U.   S.  C.  C.  1861), 

3   Wall.    Jr.    (U.    S.)    346,    11-108. 
Frisbee  v.  Irvin  (1878),  88  Pa.  St.  144, 

14-344. 
Frisbee's    Appeal    (1878),    88    Pa.    St. 

144,    14-344. 
Fritzler  v.   Robinson    (1886),   70   Iowa 

500,    17-105. 
Frowenfeld    v.    Hastings     (1901),    134 

Cal.    128,    21-503. 
Fuhr  v.   Dean    (1857),   26   Mo.   116,    6- 

216. 
Fuller  v.  Swan  River  Placer  Min.  Co. 

(1888),   12   Colo.    12,    16-252. 
Fulmer's    Appeal    (1889),    128    Pa.    24, 

17-246. 
Funk  v.  Haldeman    (1866),  53  Pa.   St. 

229,    7-203. 


Gadbury  v.   Obio  &  I.  Consol.  Natural 

&  Illuminating  Gas  Co.  (1903),  162 

Ind.    9,    22-680. 
Gaines  v.  Green  Pond  Iron-Mining  Co. 

(1881),   33   N.   J.   Eq.   603,    15-153. 
Gaines     v.     Virginia    &    A.     Coal    Co. 

(1900),  124  Ala.  394,  20-393. 
Gale  v.   Best    (1889),  78   Cal.   235,    17- 

186. 
Gale  v.  Oil  Run  Petroleum  Co.   (1873), 

6  W.  Va.  200,  9-1. 


Galey  Bros.  v.  Kellerman    (1889),  123 

Pa.  491,   17-164. 
Ganter  v.  Atkinson  (1874),  35  Wis.  48, 

9-13. 

Garman   v.    Potts    (1890),    135    Pa.    St. 
506,    16-108. 

Gartbe    v.    Hart    (1887),    73    Cal.    541, 
15-492. 

Gartside  v.  Outley    (1871),  58  111.  210, 
10-566. 

Gasbwiler    v.    Willis     (1S67),    33    Cal. 

11,  3-516. 
Gaston  v.  Plum   (1841),  14  Conn.  344, 

11-168. 
Gatewood    v.    McLaughlin     (1863),    23 

Cal.  178,  13-387. 
Gear  v.  Shaw  (1846),  1  Pinney  (Wis.) 

608,    7-643. 
Gee  v.   Olitz    (1832),  8  Wend.    (N.  Y.) 

440,  5-202. 
Geiger  v.   Green    (1846),  4  Gill    (Md.) 

472,   13-324. 

Gelcich  v.  Moriarty  (1878),  53  Cal.  217, 
9-498. 

Gemmell    v.    Swain    (1903),    28    Mont. 

331,   22-716. 
Gerber  v.  Stuart   (1870),  1  Mont.  172, 

2-152. 
Gerkins  v.  Kentucky  Salt  Co.    (1902), 

23  Ky.  L.  Rep.  2415,  22-189. 

Gerrens  v.  Huhn  &  Hunt  Silver-Mining 
Co.    (1875),  10  Nev.   137,  2-632. 

Getty  v.  Devlin    (1873),  54  N.  Y.  403, 
7-29. 

Getty  v.  Devlin    (1877),  70  N.  Y.  504, 

7-119. 
Geyman,  State  ex  rel.  v.  District  Court 

(1902),  26  Mont.  433,  22-211. 

Geyser-Marion      Gold-Mining      Co.      v. 

Stark  (U.  S.  C.  C.  1901),  106  Fed. 

558,    21-220. 
Gibbs   v.    David    (1875),   L.  R.    20   Eq. 

(Eng.)    373,    12-591. 
Gibson  v.  Pucbta    (1867),  33  Cal.   310, 

12-227. 
Gibson  v.  Smith  (1741),  2  Atk.  (Eng.) 

182,    15-111. 
Gibson  v.  Tyson  (1836),  5  Watts  (Pa.) 

34,  13-72. 
Giddings    v.    Sears    (1869),    103    Mass. 

311,  2-281. 
Gifford  v.  Carvill    (1866),  29  Cal.  589, 

6-558. 
Gillan   v.    Hutchinson    (1860),    16   Cal. 

154,  2-317. 
Gillett  v.  Treganza  (1861),  13  Wis.  472, 

7-432. 


830       Table  of  Cases  for  Morrison's  Mining  Reports. 


Gillis  v.   Downey    (U.   S.  C.   C.   1898), 

85  Fed.  483,   19-253. 
Gilmore  v.  Driscoll    (1877),  122  Mass. 

199,   14-37. 
Gilmore   v.    Hunt's   Adm'r    (1870),    66 

Pa.  St.  321,  10-134. 
Gilpin     v.     Sierra     Nevada     Min.     Co. 

(1890),  2  Idaho  662,  17-310. 
Girard  v.  Carson   (1896),  22  Colo.  345, 

18-346. 
Gird  v.  California  Oil  Co.   (U.  S.  C.  C. 

1894),  60  Fed.   531,   18-45. 
Glacier  Mountain  Silver-Mining  Co.  v. 

Willis    (1888),   127   U.   S.   471,    17- 

127. 
Glamorganshire    Iron    &    Coal    Co.   v. 

Irvine    (1866),   4   F.   &   F.    (Eng.) 

947,   6-565. 
Glasgow   v.   Chartiers   Oil   Co.    (1892), 

152  Pa.  48,  17-523. 
Gleeson    v.    Martin    White    Min.    Co. 

(1878),  13  Nev.  442,  9-429. 
Giengary  Consol.  Min.  Co.  v.  Boehmer 

(1900),  28  Colo.  1,  21-74. 
Glidden    v.    Norvell    (1880),    44    Mich. 

202,  12-170. 
Gloninger  v.  Franklin  Coal  Co.  (1867), 

55  Pa.  St.  9,  9-273. 
Godfrey  v.  White  (1880),  43  Mich.  171, 

11-562. 
Gold  Hill,  Town  of  v.  Caledonia  Silver- 
Mining  Co.    (U.   S.   C.  C.   1879),   5 

Sawy.  575,  14-202. 
Gold    Hill   Quartz-Mining    Co.    v.    Ish 

(1873),   5   Or.   104,    11-635. 

Golden  Fleece  G.  &  S.  M.  Co.  v.  Cable 

Consol.  G.  &  S.  M.  Co.    (1877),  12 

Nev.  312,   1-120. 
Golden    Reward    Min.    Co.    v.    Buxton 

Min.    Co.    (U.    S.    C.    C.    1897),    79 

Fed.    868,    18-592. 
Golden     Terra     Min.     Co.     v.     Mahler 

(1879),  4  Pac.  Coast  L.  J.  405,  4- 

390. 
Goller  v.  Fett  (1866),  30  Cal.  481,  11- 

171. 
Gonu   v.   Russell    (1879),   3   Mont.   358, 

12-630. 
Gooch  v.  Sullivan   (1878),  13  Nev.  78, 

5-14. 
Goodright   v.    Swynner    (1756),    1    Ld. 

Ken.    (Eng.)    385,   5-200. 
Goodspeed     v.    Wasatch     Silver    Lead 

Works  (1878),  2  Utah  263,  11-178. 
Gordon  v.  Darnell  (1880),  5  Colo.  302, 

2-220. 
Gordon   v.    Swan    (1872),    43    Cal.    564, 

3-84. 


Gore  v.  McBrayer  (1861),  18  Cal.  583, 
1-645. 

Gottschall  v.  Melsing  (1866),  2  Nev 
185,    1-667. 

Gowan  v.  Christie  (1873),  L.  R.  2  H   L 

(Sc.)    273,    8-688. 
Gowen    v.    Bush    (U.    S.    C.    C.    1896), 

76    Fed.    349,     18-433. 
Grady    v.    Early    (18G1),    18    Cal.    108, 

12-104. 

Graham    v.    Pierce    (1869),    19    Gratt. 

(Va.)    28,    14-308. 
Grandy     Mining     &     Smelting     Co.    v. 

Turley    (1875),  61  Mo.  375,  9-343. 
Grant     v.    Law    (1871),    29     Wis.    99, 

3-80. 

Grass  Valley  Exploration  Co.  v.  Penn- 
sylvania Consol.  Min.  Co.  (U.  S. 
C.  C.   1902),  117  Fed.   509,  22-306. 

Graves  v.  Poage  (1852),  17  Mo.  91, 
5-670. 

Graver  v.  Scott  (1875),  80  Pa.  St.  88, 
2-644. 

Great  Western  Ry.  Co.  v.  Blades 
(1901),  L.  R.  2  Ch.  D.  (Eng.)  624, 
21-425. 

Green  v.  Ashland  Iron  Co.  (1869),  62 
Pa.  St.  97,  12-692. 

Green  v.  Gilbert  (1867),  21  Wis.  395, 
2-694. 

Green  v.  Ophir  Copper,  Silver  &  Gold- 
Mining  Co.  (1873),  45  Cal.  522, 
12-140. 

Green  v.  Prettyman  (1861),  17  Cal.  401, 
5-515. 

Green  v.  Sparrow  (1725),  3  Swanst. 
(Eng.)    408,   12-635. 

Greenwood's  Appeal  (1879),  92  Pa.  St. 
181,    14-603. 

Gregory  v.  Harris  (1872),  43  Cal.  38, 
14-91. 

Gregory  v.  Nelson   (1871),  41  Cal.  278, 

12-124. 
Gregory  v.  Pershbaker   (1887),  73  Cal. 

109,    15-602. 
Grey     v.     Duke     of     'Northumberland 

(1806),    13    Ves.    Jr.     (Eng.)     235. 

7-250. 
Grey     v.     Duke     of     Northumberland 

(1810),    17    Ves.    Jr.     (Eng.)     281, 

7-251. 
Gribben  v.  Atkinson    (1887),  64  Mich. 

651,    15-428. 
Griffin    v.    American    Gold-Mining    Co. 

(U.   S.   C.   C.   1903),   123  Fed.   283, 

22-709. 
Griffin    v.    Fellows    (1S73).    81    Pa.    St 

114,   8-657. 


Table  of  Cases  for  Morrison's  Mining  Eeports.        831 


Griffiths  v.   Gidlow    (1858),  2  H.  &  N. 

(Eng.)    648,    10-639. 
Griffiths  v.   Rigby    (1856),   1   H.   &  N. 

(Eng.)   237,  2-528. 
Griswold    &    Smith's    Case     (1859),    4 

De  G.  &  J.    (Eng.)    544,  2-36. 
Grove  v.  Donaldson   (1850),  15  Pa.  St. 

128,    2-507. 
Grove  v.  Hodges  (1867),  55  Pa.  St.  504, 

2-698. 
Grubb  v.  Bayard   (U.  S.  C.  C.  1851),  2 

Wall.  Jr.    (U.   S.)    81,   9-199. 
Grubb  v.  Grubb   (1873),  74  Pa.  St.  25, 

7-226. 
Grubb    v.    Guilford     (1835),    4    Watts 

(Pa.)    223,    5-163. 
Grubb's  Appeal  (1869),  62  Pa.  St.  252, 

14-221. 
Grubb's  Appeal  (1870),  66  Pa.  St.  117, 

3-416. 
Grymes   v.    Sanders    (1876),    93   U.    S. 

55,    10-445. 
Guerrero,    State    ex    rel.    v.    Pettineli 

(1875),  10  Nev.  141,   12-513. 
G.  V.  B.  Min.  Co.  v.  First  Nat.  Bank  of 

Hailey  (U.  S.  C.  C.  1899),  95  Fed. 

35,    20-66. 
Gwillim  v.  Donnellan  (1885),  115  U.  S. 

45,   15-482. 

H. 

Hacker    v.    National    Oil-Refining    Co. 

(1873),  73  Pa.  St.  93,   13-538. 
Haeussler  v.  Missouri  Iron  Co.   (1892), 

110   Mo.    188,    17-458. 
Hail  v.  Reed  (1854),  15  B.  Mon.  (Ky.) 

479,    11-103. 
Haines   v.   Roberts    (1857),   7  E.   &  B. 

(Eng.)    625,    13-668. 
Haldeman  v.  Bruckhart  (1863),  45  Pa. 

St.  514,  5-108. 
Hale  &  Norcross  Gold  &  Silver-Mining 

Co.    v.    Storey    County    (1865),    1 

Nev.   104,    14-115. 
Hall  v.  Duke  of  Norfolk  (1900),  L.  R. 

2  Ch.    (Eng.)    493,   20-636. 
Hall  v.  Fisher  (1855),  20  Barb.  (N.  Y.) 

441,    12-88. 
Hall  v.  Hopwood  (1879),  49  L.  J.  M.  C. 

(Eng.)    17,    15-42. 
Hall    v.    Johnson    (1865),    3    H.    &    C. 

(Eng.)    589,    9-684. 
Hall   v.   Kearny    (1893),   18   Colo.    505, 

17-594. 
Hallack  v.  Traber   (1896),  23  Colo.  14, 

18-360. 
Halsey   v.  Martin    (1863),  22  Cal.  645, 

10-549. 


Hamill   v.    Thompson    (1877),    3   Colo. 

518,    14-696. 
Hamilton   v.   Huson    (1898),   21   Mont. 

9,     19-274. 

Hamilton  v.  Kneeland    (1865),  1  Nev. 

40,    2-583. 
Hamilton  v.  Southern  Nevada  Gold  & 

Silver-Mining    Co.    (U.     S.     C.     C. 

1887),    33    Fed.    562,    15-314. 
Hammer  v.  Garfield  Mining  &  Milling 

Co.   (1889),  130  U.  S.  291,  16-125. 
Hancock   v.   Hodgson    (1827),   4   Bing. 

(Eng.)     269,    11-698. 
Hancock    v.    Watson    (1861),    18    Cal. 

138,    10-546. 
Hand  v.  Dexter  (1871),  41  Ga.  454,  3- 

608. 

Handrahan    v.    Cheshire    Iron    Works 

(1862),     4      Allen      (Mass.)      396, 

12-9. 
Hanley  v.  Sweeny   (U.  S.  C.  C.  1901), 

109  Fed.  712,  21-333. 
Hanley  v.  Wood    (1819),   2   B.  &  Aid. 

(Eng.)   724,  9-182. 
Hanover   Water   Co.    v.    Ashland    Iron 

Co.     (1877),    84    Pa.    St.    279,    10- 

204. 

Hansen  v.  Martin   (1880),  54  Cal.  394, 
5-643. 

Hanson  v.  Boothman    (1810),  13  East 

(Eng.)    22,   2-217. 
Hardenbergh    v.     Bacon    &    Woodruff 

(1867),  33  Cal.  356,   1-352. 
Hardwick  v.  McClurg  (1901),  16  Colo. 

App.   354,  21-412. 
Hardy  v.  Stonebraker   (1872),  31  Wis. 

640,    7-10. 
Hargrave  v.  King  (1848),  40  N.  C.  430, 

8-408. 
Hargrave    v.    Smith    (1867),    62    N.    C. 

165,    14-395. 
Harkness   v.    Burton    (1S74),    39    Iowa 

101,  9-318. 
Harkrader  v.  Carroll  (U.  S.  D.  C.  1896), 

76    Fed.    474,    18-474. 
Harlan   v.   Lehigh   Coal   &   Navigation 

Co.    (1860),  35  Pa.   St.  287,   8-496. 
Harley  v.  Montana  Ore-Purchasing  Co. 

(1903),    27   Mont.   388,    22-550. 
Harlow    v.    Lake    Superior     Iron     Co. 

(1877),    36    Mich.    105,    9-47. 
Harlow     v.    Lake     Superior     Iron     Co. 

(1879),   41   Mich.   583,   8-285. 
Harris  v.  Cobb   (1901),  49  W.  Va.  350, 

21-263. 
Harris  v.  Equator  Mining  &  Smelting 

Co.   (U.  S.  C.  C.  1881),  3  McCrary 

14,    8    Fed.    863,    12-178. 


832        Table  of  Cases  for  Morrison's  Mining  Reports. 


Harris  v.  Ohio  Oil  Co.  (1897),  57  Ohio 

St.   118,    19-157. 
Harris  v.  Tyson  (1855),  24  Pa.  St.  347, 

14-634. 

Hartford   Iron-Mining  Co.   v.   Cambria 

Min.  Co.    (1892),  93  Mich.  90,   17- 

515. 
Hartford  &  S.  Ore  Co.  v.  Miller  (1874), 

41  Conn.  112,  3-353. 
Hartney    v.    Gosling    (1902),  10    Wyo. 

346,    22-239. 

Harts    v.    Brown    (1875),    77    111.    226, 
4-1. 

Hartwell  v.  Camman    (1854),  10  N.  J. 

Eq.    128,    3-229. 
Harvey  v.  Coffin   (1863),  44  N.  H.  563, 

12-336. 

Harvey  v.   Ryan    (1872),   42   Cal.   626, 

4-490. 
Harvey     v.     Sides     Silver-Mining     Co. 

(1865),  1  Nev.  539,  10-107. 
Hasson    v.    Oil   Creek    &   A.    River   R. 

Co.     (1871),    8    Phila.     (Pa.)     556, 

12-547. 
Hawesville,  Trustee  of  v.  Hawes'  Heirs 

(1869),  6  Bush.   (Ky.)    232,  7-193. 

Hawkins  v.  Mansfield  Gold-Mining  Co. 

(1877),   52   Cal.   513,    13-581. 
Hawley  v.   Brumagim    (1867),   33   Cal. 

394,  13-464. 

Hawtayne  v.  Bourne  (1841),  7  M.  &  W. 

(Eng.)   595,   1-285. 
Hawxhurst  v.  Lander    (1865),  28  Cal. 

331,    12-214. 

Hazelton    Coal   Co.   v.   Buck    Mountain 

Coal    Co.    (1868),    57   Pa.    St.    301, 

2-389. 
Hayes   v.   Lavagnino    (1898),   17   Utah 

185,    19-485. 
Haynes  v.  Briscoe  (1901),  29  Colo.  137, 

21-720. 

Haywood    v.    Cope     (1858),   25    Beav. 

(Eng.)   140,  6-499. 
Head  v.  Fordyce    (1860),  17  Cal.   149, 

12-470. 
Healey  v.   Rupp    (1900),   28   Colo.   102, 

21-117. 
Hebrard    v.  Jefferson    Gold    &    Silver- 
Mining    Co.    (1867),    33    Cal.    290, 

5-270. 
Hecksher  &  Co.  v.  Shoemaker   (1864), 

47   Pa.   St.   249,   2-131. 
Hedge's  Appeal  (1869),  63  Pa.  St.  273, 

11-462. 

Heeg   v.    Licht    (1880),    80   N.    Y.    579, 
11-74. 

Heffner  v.  Lewis  (1873),  73  Pa.  St.  302, 
6-98. 


Heinze,  State  ex  rel.  v.  District  Court 
(1902),   26    Mont.    416,    22-195. 

Hellman  v.  Holladay  (U.  S.  C.  C. 
1868),  1  Woolw.  (U.  S.)  365,  7- 
168. 

Henderson    v.    Allen     (1863),   23    Cal. 

519,  6-227. 
Henderson   v.   Ferrell    (1898),   183   Pa. 

547,    19-205. 
Hendrie   &  Bolthoff  Mfg.   Co.   v.   Holy 

Cross   Gold-Mining  Co.    (1902),    17 

Colo.  App.   341,   22-179. 

Hendrix    v.    McBeth     (1878),    61    Ind. 

473,  5-74. 
Henry   v.    Everts    (1866),   29   Cal.    610, 

5-603. 
Henshaw  v.  Clark   (1859),  14  Cal.  460, 

14-434. 
Henszey  v.  Langdon-Henszey  Coal-Min- 
ing   Co.     (U.    S.    C.    C.    1897),    80 

Fed.    178,    18-614. 
Herbert  v.   King    (1872),  1  Mont.  475, 

5-303. 
Hess   v.   Winder    (1866),    30   Cal.    349, 

12-217. 
Hewitt  Iron-Mining  Co.  v.  Dessau  Co. 

(1902),  129  Mich.  590,  22-111. 

Hext  v.  Gill  (1872),  L.  R.  7  Ch.  App. 
Cas.     (Eng.)     699,     17-1. 

Hexter  v.  Pearce  (1900),  L.  R.  1  Ch. 
(Eng.)    341,   21-143. 

Heydenfeldt  v.  Daney  Gold  &  Silver- 
Mining  Co.  (1876),  93  U.  S.  634, 
13-204. 

Hicks  v.  Jennings   (U.  S.  C.  C.  1880), 

4  Fed.    855,    7-138. 

Higgins  v.  Barker  (1871),  42  Cal.  233, 
7-525. 

Higgins   v.   Houghton    (1864),   25   Cal. 

252,    13-195. 
Higham  v.  Wright   (1877),  L.  R.  2  C. 

P.  D.    (Eng.)    397,   10-24. 

Highland  Ditch  Co.  v.  Mumford  (1880), 

5  Colo.  325,  2-3. 

Hill  v.  Newman  (1855),  5  Cal.  445, 
4-513. 

Hill  v.  King  (1857),  8  Cal.  337,  4-533. 
Hill  v.   Smith    (1865),   27  Cal.   476,  4- 
597. 

Hill  v.  Spencer  (1874),  61  N.  Y.  274, 
1-414. 

Hill  v.  Sumner  (1889),  132  U.  S.  118, 
16-281. 

Hill  v.  Taylor   (1863),  22  Cal.  191,  12- 

569. 
Hillyer  v.   Overman   Silver-Mining  Co. 

(1870),  6  Nev.   51,  3-44. 


Table  of  Cases  for  Morrison's  Mining  Eeports. 


833 


Hilton  v.   Woods    (1867),  L.  R.   4  Eq. 

(Eng.)   432,  10-110. 
Hines  v.   Miller    (1898),   122   Cal.   517, 

19-609. 
Hinkle   v.    San   Francisco   &   N.   P.   R. 

Co.  (1880),  55  Cal.  627,  5-645. 
Hirbour    v.    Reeding    (1S77),    3    Mont. 

13,   11-514. 
Hitchens   v.    Nougues    (1858),    11   Cal. 

28,   14-649. 
Hixon   v.   Pixley    (1880),   15  Nev.    475, 

11-555. 
Hobart  v.  Ford   (1870j,  6  Nev.  77,  15- 

236. 

Hobart  v.  Wicks  (1880),  15  Nev.  418, 
2-1. 

Hodgkinson  v.  Fletcher  (1781),  3 
Dougl.   (Eng.)    31,   1-173. 

Hodgson  v.  Moulson  (1865),  18  C.  B. 
N.  S.    (Eng.)    332,  8-511. 

Hodgson  v.  Perkins  (1888),  84  Va. 
706,  16-116. 

Hoeveler  v.  Mugele  (1870),  66  Pa.  St. 
348,    14-654. 

Hoffman  v.   Beecher    (1892),  12   Mont. 

489,     17-503. 
Hoffman    v.    Stone    (1857),    7    Cal.    46, 

4-520. 
Holland  v.  Mount  Auburn  Gold  Quartz 

Mining  Co.    (1878),  53  Cal.  149,  9- 

497. 
Holmes  v.  Day   (1869),  103  Mass.  306, 

2-276. 
Holter    Hardware    Co.,    A.    M.    v.    On- 
tario   Min.    Co.     (1900),    24    Mont. 

198,   20-518. 
Honaker   v.   Martin    (1891),    11   Mont. 

91,  17-404. 
Honor    v.    Albrighton     (1880),    93    Pa. 

St.  475,  11-6. 
Hook  v.  Garfield  Coal  Co.   (1900),  112 

Iowa    210,    21-81. 
Hooks   v.    Forst    (1895),    165    Pa.    238, 

18-139. 
Hope   Min.    Co.    v.    Kennon    (1877),    3 

Mont.   35,    14-189. 
Hope  Min.  Co.,  In  re  (U.  S.  C.  C.  1871), 

1    Sawy.    710,    9-364. 
Hopkins  v.  Noyes  (1883),  4  Mont.  550, 

15-287. 
Horner  v.   Watson    (1875),   79   Pa.   St. 

242,  14-1. 

Horn's  Appeal  (1869),  63  Pa.  St.  273, 
11-462. 

Horswell  v.  Ruiz    (188o),  67  Cal.  Ill, 

15-488. 
Hosford   v.   Metcalf    (1901),   113   Iowa 

240,   21-198. 

W.  &  M.— 53 


House   v.    Palmer    (1851),    9    Ga.    497, 
13-104. 

Houtz  v.  Gisborn    (1874),  1  Utah  173, 
2-340. 

Howard  v.   Brigham    (18G7),  98  Mass. 
133,   3-1. 

Hoyt   v.    Quicksilver   Min.   Co.    (1879), 

78  N.  Y.  159,  4-47. 
Hoyt  v.   Smith    (1854),   23   Conn.   177, 

12-306. 

Hoyt    v.    Smith    (1858),    27    Conn.    63, 
12-315. 

Hoyt  v.    Smith    (1858),   27   Conn.   468, 
12-321. 

Hoyt  v.   Smith    (1859),  28   Conn.   466, 

12-325. 
Hudson   Iron  Co.   v.   Stockbridge  Iron 

Co.   (1871),  107  Mass.  290,  13-120. 
Huff   v.    McCauley    (18G6),   53    Pa.    St. 

206,    9-268. 

Huff  v.  McDonald   (1857),  22  Ga.  131, 
14-262. 

Huffman  v.  Hummer   (1866),  18  N.  J. 
Eq.  83,  2-242. 

Huggins  v.  Daley   (U.  S.  C.  C.  1900), 

99  Fed.  606,  20-377. 
Hughes  v.  Devlin    (1863),  23  Cal.  501, 

12-241. 
Hugunin  v.  McCunniff   (1874),  2  Colo. 

367,   14-463. 
Humphreys  v.  Mooney   (1880),  5  Colo. 

282,   4-76. 
Hunt  v.  Eureka  Gulch  Min.  Co.  (1890), 

14   Colo.   451,    17-340. 
Huntington,  Earl  of  &  Lord  Montjoy's 

Case    (25    Eliz.),   4    Leon.    (Eng.) 

147,   9-175. 
Huntington   &  B.   T.  Railroad  &  Coal 

Co.   v.  English    (1878),   86  Pa.   St. 

247,   10-233. 
Hunter  v.   Savage   Consol.   Silver-Min- 
ing Co.   (1868),  4  Nev.  153,  9-357. 
Hurd  v.  Gill   (1871),  45  N.  Y.  341,  9- 

306. 
Hutchison    &    Batchelder    v.    Common- 
wealth   (1876),  82   Pa.   St.   472,  4- 

208. 
Hyman  v.  Wheeler  (U.  S.  C.  C.  1886), 

29  Fed.  347,   15-519. 


lams    v.    Carnegie    Natural    Gas    Co. 

(1899),  194  Pa.  72,  20-335. 
Illinois  &  St.  L.  Railroad  &  Coal  Co.  v. 
Ogle    (1879),   92   111.   353,   10-282. 
Illinois  &  St.  L.  Railroad  &  Coal  Co. 

v.  Ogle  (1876),  82  111.  627,  10-198. 


834        Table  of  Cases  for  Morrison's  Mining  Reports. 


Indianapolis  Gas  Co.  v.  Teters  (1896), 

15  Ind.  App.  475,   18-391. 
Indianapolis   Nat.    Gas    Co.    v.    Kibbey 

(1893),  135  Ind.  357,  17-677. 
Iron  Mine  v.  Loella  Mine  (U.  S.  C.  C. 

1880),  3  Fed.  368,  2  McCrary  121, 

1-548. 

*ron  Silver-Mining  Co.  v.  Campbell 
(1890),  135  U.  S.  286,   16-218. 

Iron  Silver-Mining  Co.  v.  Cheeseman 
(U.  S.  C.  C.  1881),  2  McCrary  191, 
9-552. 

Iron  Silver-Mining  Co.  v.  Elgin  Mining 

&  Smelting  Co.    (1886),   118  U.   S. 

196,   15-641. 
Iron  Silver-Mining  Co.  v.  Mike  &  Starr 

Gold    &   Silver-Mining   Co.    (1892), 

143  U.  S.  394,   17-436. 

Iron  Silver-Mining  Co.  v.  Murphy  (U. 
S.  C.  C.  1880),  3  Fed.  368,  2  Mc- 
Crary 121,  1-548. 

Irvine  v.  Hanlin  (1823),  10  Serg.  &  R. 
(Pa.)  219,  14-241. 

Irwin  v.  Covode  (1854),  24  Pa.  St.  162, 
15-120. 

Irwin  v.  Davidson  (1844),  38  N.  C.  311, 
7-237. 

Irwin  v.  Harris  (1849),  41  N.  C.  215, 
14-534. 

Irwin   v.    Phillips    (1855),   5   Cal.   140, 

15-178. 
Isaacs   v.   McAndrew    (1872),   1    Mont. 

437,   9-690. 
Ivanhoe  Min.  Co.  v.  Keystone  Consol. 

Min.  Co.  (1880),  102  U.  S.  167,  13- 

214. 


Jackson  v.  Allen  (1878),  4  Colo.  263, 
7-127. 

Jackson  v.  Feather  River  &  G.  Water 
Co.   (1859),  14  Cal.  18,  5-594. 

Jackson  v.  McMurray  (1878),  4  Colo. 
76,   12-164. 

Jackson  v.  O'Hara  (1897),  183  Pa.  233, 

19-153. 
Jackson  ex  dem.   Gee  v.  Olitz   (1832), 

8  Wend.  (N.  Y.)  440,  5-202. 
Jackson  v.  Stoetzel   (1878),  87  Pa.  St. 

302,   1-228. 

Jackson  v.  Walton    (1856),   28  Vt.  43, 

14-488. 
Jackson   Min.   Co.   v.   Auditor   General 

(1875),   32   Mich.   488,   14-182. 
Janes  v.   Scott    (1868),  59  Pa.  St.  178, 

7-181. 
Jefferys  v.   Fairs    (1876),  L.  R.   4   Ch. 

D.  (Eng.)   448,  13-367. 


Jeffords  v.   Hine    (1886),   2   Ariz.   162, 

15-575. 
Jeffreis   v.    Williams    (1850),    5    Exch. 

(Eng.)   792,   13-645. 
Jegon    7.   Vivian    (1871),   L.   R.   6   Ch. 

App.    (Eng.)    742,   8-628. 
Jenkins  v.  Redding  (1857),  8  Cal.  598, 

14-647. 

Jennings  v.  Broughton  (1854),  5  De 
G.,  M.  &  G.    (Eng.)   126,   12-405. 

Jennings  v.  Rickard  (1887),  10  Colo. 
395,    15-624. 

Jennison  v.  Kirk  (1878),  98  U.  S.  453, 
4-504. 

Jenny  Lind  Co.  v.  Bower  &  Co.  (1858), 

11   Cal.   194,   5-589. 
Job    v.    Potton    (1875),    L.    R.    20    Eq. 

(Eng.)    84,   14-329. 

Joch  v.  Dankwardt  (1877),  85  111.  331, 

10-690. 
Johnson  v.  Badger  Mill  &  Mining  Co. 

(1878),  13  Nev.  351,  3-386. 
Johnson  v.   Buell    (1879),  4  Colo.   557, 

9-502. 
Johnson     v.     California     Lustral     Co. 

(1899),  127  Cal.  283,  20-314. 

Johnson  v.  Lamping  (1867),  34  Cal. 
293,   14-450. 

Johnson  v.  Munday  (U.  S.  C.  C.  1900), 
104  Fed.  594,  21-96. 

Johnson  v.  Parks  (1858),  10  Cal.  446, 
4-316. 

Johnston  v.  Cowan   (1868),  59  Pa.  St. 

275,   9-299. 
Johnston   v.   Filer    (1902),   201   Pa.   60, 

21-741. 

Johnston   v.    Shelton    (1845),  39  N.   C. 

85,  4-308. 
Johnston  v.  Standard  Min.  Co.   (1893), 

148  U.  S.  360,   17-554. 

Johnstone  v.  Crompton  &  Co.  (1899), 
L.  R.  2  Ch.  (Eng.)  190,  20-649. 

Johnstone  v.  Robinson  (U.  S.  C.  C. 
1881),  3  McCrary  42,  12-396. 

Johnston's  Adm'r  v.  Mendenhall 
(1876),  9  W.  Va.  112,  15-101. 

Johnston's  Appeal  (1886),  7  Atl.  (Pa.) 

167,   15-556. 
Johnstown    Iron   Co.   v.    Cambria   Iron 

Co.    (1858),  32  Pa.  St.  241,   9-226. 
Jones  v.  Bolles  (1869),  9  Wall.  (U.  S.) 

364,    5-444. 

Jones  v.  Clark  (1871),  42  Cal.  180,  11- 

473. 
Jones  v.  Forest  Oil  Co.  (1900),  194  Pa, 

379,   20-350. 


Table  of  Cases  for  Morrison's  Mining  Reports. 


835 


Jones  v.  Holden  (1903),  182  Mass.  384, 

22-523. 
Jones   v.   Jackson    (1858),   9   Cal.   237, 

14-72. 

Jones   v.   Kent    (1880),   80   N.   Y.   585, 

3-190. 
Jones  v.  Prospect  Mountain  Tunnel  Co. 

(1892),  21  Nev.  339,   17-530. 
Jones    v.    Robertson     (1886),    116    111. 

543,   15-703. 
Jones    v.    Shears     (1836),    7    C.    &    P. 

(Eng.)    346,  8-333. 
Jones    v.    Wagner    (1870),    66    Pa.    St. 

429,   13-690. 
Joseph  v.  Davenport   (1902),  116  Iowa 

268,  22-171. 
Jowett    v.    Spencer     (1847),    1    Exch. 

(Eng.)   647,  2-499. 
Judge    v.    Braswell    (1877),    13    Bush. 

(Ky.)   67,  11-508. 
Jupiter  Min.  Co.  v.  Bodie  Consol.  Min. 

Co.    (U.    S.    C.    C.    1881),    11    Fed. 

666,  7  Sawy.  96,  4-411. 
Justice  Min.  Co.  v.  Barclay   (U.   S.  C. 

C.  1897),  82  Fed.  554,  19-68. 
Justice    Min.    Co.    v.    Lee    (1895),    21 

Colo.  260,  18-220. 

K. 

Kahn  v.  Central  Smelting  Co.   (1880), 

102   U.   S.   641,    11-540. 
Kahn   v.    Hamilton    (1877-80),    2   Utah 

115,    14-608. 
Kahn     v.     Old     Telegraph     Min.     Co. 

(1877),  2  Utah  13,  7-559. 
Kahn  v.  Old  Telegraph  Min.  Co.  (1877), 

2  Utah  174,  11-645. 
Kalb  v.  Kantorowicz    (1857),  3  Kay  & 

J.   (Eng.)   230,  6-480. 
Kamphouse   v.   Gaffner    (1874),   73   111. 

453,   2-257. 
Kantorowicz  v.   Carter    (1857),   3   Kay 

&  J.    (Eng.)    230,  6-480. 
Karns    v.    Tanner    (1870),    66    Pa.    St. 

297,   5-289. 
Keeler  v.   Green    (1870),   21  N.  J.   Eq. 

27,   12-465. 
Keith,     Wickersham     &     v.     Chicago 

Zinc     Co.     (1877),    18     Kan.     481, 

5-536. 
Kelley  v.  Boettcher  (U.  S.  C.  C.  1898), 

89  Fed.  125,   19-515. 
Kelly   v.   Clark    (1898),   21   Mont.   291, 

19-431. 
Kelly  v.  Marshall    (1896),  172  Pa.  396, 

18-317. 
Kelly  v.  Natoma  Water  &  Mining  Co. 

(1856),   6   Cal.   105,    1-592. 


Kelly    v.    Taylor    (1863),    23    Cal.    11, 

5-598. 
Kelsey    v.     Northern     Light     Oil    Co. 

(1871),   45  N.  Y.   505,    13-497. 
Kemble    Coal    &    Iron    Co.    v.     Scott 

(1879),   90   Pa.    St.   332,    9-80. 
Kendall  v.  San  Juan  Silver-Mining  Co. 

(1892),   144  U.   S.   658,    17-475. 
Kennedy  v.   Schwartz    (1878),  12  Nev. 

229,   2-679. 

Kent  v.  Quicksilver  Min.  Co.  (1879),  78 

N.  Y.  159,  4-47. 
Keppel   v.   Lehigh   Coal   &  Navigation 

Co.   (1901),  200  Pa.  649,  21-605. 
Ketchum    v.    Barber    (1886),    12    Pac. 

(Cal.)    257,   15-378. 

Keyes  v.  Little  York  Gold-Washing  & 
Water  Co.  (1879),  53  Cal.  724, 
14-95. 

Keystone  Min.  Co.  v.  Gallagher  (1879), 
5  Colo.  23,  9-406. 

Kidd    v.    Laird     (1860),    15    Cal.    162, 

4-571. 
Kielley    v.    Belcher    Silver-Mining   Co. 

(U.    S.   C.   C.   1875),   3   Sawy.   437, 

10-3. 

Kielley    v.    Belcher    Silver-Mining    Co. 

(U.    S.   C.    C.   1875),   3   Sawy.   500, 

10-11. 
Kier   v.    Peterson    (1861),    41    Pa.    St. 

357,   8-499. 
Kille   v.   Ege    (1876),   82   Pa.   St.   102, 

12-654. 

Kimball   v.    Gearhart    (1859),    12    Cal. 

28,   1-615. 
Kimberley  Waterworks  Co.,  Ltd.  v.  De 

Beers  Consol.   Mines,  Ltd.    (1897), 

L.    R.    App.    Cas.    (Eng.)    515,    19- 

62. 
Kimmins  v.   Wilson    (1875),  8  W.  Va. 

584,  2-159. 
Kincaid  v.  Price  (1902),  18  Colo.  App. 

73,    22-382. 
King   v.    Amy    &    Silversmith    Consol. 

Min.  Co.    (1890),  9  Mont.  543,   16- 

38. 
King    v.    Amy    &    Silversmith    Consol. 

Min.    Co.    (1894),    152    U.    S.    222, 

18-76. 
King  v.  Edwards   (1870),  1  Mont.  235, 

4-480. 
King  v.  New  York  &  C.  Gas  Coal  Co. 

(1903),  204  Pa.   628,  22-515. 

King  v.   Randlett    (1867),  33  Cal.   318, 

5-605. 
Kinnev  v.   Consolidated   Virginia  Min. 

Co.    (U.    S.    C.    C.    1877),    4    Sawy. 

382,    10-457. 


836        Table  of  Cases  for  Morrison's  Mining  Reports. 


Kinney  v.  Fleming  (1899),  6  Ariz.  263, 

20-13. 
Kinsman  v.  Jackson    (1880),  42  L.  T. 

Rep.  N.  S.   (Eng.)    80,  6-352. 
Kirk  v.  Hartman  &  Co.   (1869),  63  Pa. 

St.  97,   11-450. 
Kirk  v.  Meldrum  (1901),  28  Colo.  453, 

21-393. 
Kleppner    v.    Lemon    (1896),    176    Pa. 

502,  18-404. 
Kleppner    v.    Lemon    (1901),    198    Pa. 

581,  21-275. 
Knaresborough   v.   Belcher   Silver-Min- 
ing Co.  (U.  S.  C.  C.  1885),  3  Sawy. 

446,    12-155. 
Knotts  v.  McGregor  (1900),  47  W.  Va. 

566,   20-432. 
Knowlton  v.  Culver   (1849),  2  Pinney 

(Wis.)    243,   12-682. 
Knowlton   v.   Sewall    (1865),   10  Allen 

(Mass.)   34,  2-591. 
Koch's  Appeal    (1880),  93  Pa.   434,  4- 

151. 
Koen    v.    Bartlett    (1895),    41    W.    Va. 

559,    18-289. 
Kraber's   Appeal    (1881),   12    Reporter 

(Pa.)    476,    9-127. 
Kramer  v.  Settle   (1873),  1  Idaho  485, 

9-561. 
Kreutz  v.  McKnight  (1867),  53  Pa.  St. 

319,  6-314. 
Krum    &    Peters    v.    Mersher     (1887), 

116   Pa.  St.  17,    15-415. 
Kuhn    v.    McAllister    (1875),    1    Utah 

273,  14-512. 
Kuhns'  Appeal   (1876),  81  Pa.  St.  278, 

8-255. 
Kunkle   v.    Peoples'    Natural    Gas    Co. 

(1895),  165   Pa.  133,   18-153. 


La  Crosse  G.  M.  Co.  v.  Scudder  (1877), 

4  Colo.  44,  1-446. 
Ladd  v.  Cartwright  (1879),  7  Or.  329, 

13-607. 
Lady  Bryan  Gold  &  Silver-Mining  Co. 

v.  Lady  Bryan  Min.  Co.   (1888),  4 

Nev.  414,  7-478. 
Laflin    &    Rand    Powder    Co.    v.    Sins- 

heimer   (1877),  48  Md.  411,  2-167. 
Lagarde  v.  Anniston  Lime  &  Stone  Co. 

(1900),   126  Ala.   496,   20-545. 
Laird  v.  Boyle  (1853),  2  Wis.  431,  12- 

82. 
Laird    v.    Waterford     (1875),    50    Cal. 

315,  6-230. 
Lake    Superior    Iron    Co.    v.    Erickson 

(1878),  39  Mich.  492,   10-39. 


Lallerstedt    v.    Griffin    (1860),    29    Ga. 

708,  2-128. 
Lamb    v.    Gaston    &    Simpson    Gold    & 

Silver-Mining  Co.   (1868),  1  Mont. 

64,    1-381. 
Lambert  v.  Fuller   (1878),  88  111.  261, 

3-202. 
Lampe    v.    Kennedy    (1878),    45    Wis. 

23,  2-266. 
Lansdale  v.  Ives   (1887),  2  Idaho  265, 

2   Idaho    (West  Ed.)    244,    15-324. 
Larkin  v.  Upton    (1892),  144  U.  S.  19, 

17-465. 
Larned  v.  Jenkins   (U.  S.  C.  C.  1902), 

112  Fed.  634,  22-94. 
Lasier   v.   Appleton   Land   &   Iron   Co. 

(1902),    130    Mich.    588,    22-229. 

Last  Chance  Min.  Co.  v.  Bunker  Hill 
&  S.  Mining  &  Concentrating  Co. 
(1892),  49  Fed.  430,  17-449. 

Last  Chance  Min.  Co.  v.  Tyler  Min. 
Co.   (1895),  157  U.  S.  683,  18-205. 

Laubach  v.  Laubach  (1873),  73  Pa.  St. 

387,    10-177. 
Lavagnino  v.  Uhlig  (1903),  26  Utah  1, 

22-610. 
Law    v.    Grant    (1875),    37    Wis.    548, 

7-56. 
Lawrence   v.    Gayetty    (1889),   78   Cal. 

126,    17-169. 
Lawrence  v.  Robinson   (1879),  4  Colo. 

567,    12-387. 
Lawrence    &    Others'    Appeal     (1875), 

78  Pa.  St.  365,  7-542. 
Lawson    v.    Kirchner     (1901),    50    W. 

Va.    344,    21-683. 
Leadville   Min.    Co.   v.    Fitzgerald    (U. 

S.  C.  C.  1879),  Fed.  Cas.  No.  8,158, 

4-380. 
Learning   v.    Wise    (1873),   73   Pa.    St. 

173,   7-41. 
Leatherman  v.  Oliver    (1892),  151  Pa. 

646,    17-526. 
Leavers  v.  Cleary    (1874),  75  111.  349, 

2-618. 
Lee    v.    Stahl    (1889),    13    Colo.    174, 

16-152. 
Leech  v.  demons  (1899),  14  Colo.  App. 

45,  20-186. 

Leet  v.  John  Dare  Silver-Mining  Co. 
(1870),  6  Nev.  218,  4-487. 

Le   Fevre  v.   Carr    (1856),   27   Pa.   St. 

413,  3-477. 
Le  Fevre  v.  Castagnio   (1881),  5  Colo. 

564,    11-579. 
Leggatt    v.    Stewart    (1883),    5    Mont. 

107,    15-358. 


Table  op  Cases  for  Morrison's  Mining  Reports. 


837 


Legge     v.     Legge     (1863),     32     Beav. 

(Eng.)    509,    15-130. 
Lehigh  Coal  &  Navigation  Co.  v.  Har- 
lan   &    Henderson    (1856),    27    Pa. 

St.   429,   8-423. 
Lehigh     Valley     Coal     Co.     v.     Jones 

(1878),   86  Pa.    St.   432,    10-30. 
Lehigh  Zinc  &  Iron  Co.  v.  New  Jersey 

Zinc  &  Iron  Co.    (1893),   55   N.   J. 

L.    350,    17-600. 
Leigh    Co.    v.    Independent    Ditch    Co. 

(1857),  8  Cal.  323,   12-97. 

Leiter,  Stevens  &  v.  Murphy  (U.  S.  C. 

C.  1879),     Fed.     Cas.     No.     8,158, 
4-380. 

Leitham  v.  Cusick  (1875),  1  Utah  242, 

7-546. 
Lenfers  v.  Henke    (1874),  73  111.   405, 

5-67. 
Lentz    v.    Victor    (1861),   17    Cal.    271, 

12-211. 
Leonard  v.  Peeples   (1860),  30  Ga.  61, 

6-538. 
Levaroni  v.  Miller  (1867),  34  Cal.  231, 

12-232. 
Lewey  v.  H.  C.  Frick  Coke  Co.  (1895), 

166  Pa.  536,   18-179. 
Lewis  v.  Fothergill  (1869),  L.  R.  5  Ch. 

App.    (Eng.)    103,   15-271. 
Lewis  v.  James    (1886),  L.  R.   32  Ch. 

D.  (Eng.)    326,    15-649. 

Lewis  v.  Marsh  (1849),  8  Hare  (Eng.) 

97,  8-14. 
Lillibridge    v.    Lackawanna    Coal    Co. 

(1891),  143  Pa.  293,   17-412. 
Lincoln   v.    Rodgers    (1870),    1    Mont. 

217,   14-79. 
Lindsey  v.  Union  Silver  Star  Min.  Co. 

(1901),  26  Wash.  301,  21-586. 

Litchfield   Coal   Co.   v.   Taylor    (1876), 

81  111.  590,  10-684. 
juittle  Gunnell  Gold-Mining  Co.  v.  Kim- 

ber   (U.  S.  C.  C.  1878),  Fed.  Cas. 

No.   8,402,    1-53  6. 
Little  Josephine  Min.  Co.  v.  Fullerton 

(1893),  58  Fed.  521,  17-664. 

Little  Pittsburg  Consol.  Min.  Co.  v. 
Little  Chief  Consol.  Min.  Co. 
(1888),  11  Colo.  223,   15-655. 

Little  Schuylkill  Navigation,  Railroad 

6  Coal    Co.    v.    Richards'    Adm'r 
(1868),   57   Pa.   St.   142,    10-661. 

Live  Yankee  Co.  v.  Oregon  Co.  (1857), 

7  Cal.   40,    12-94. 

Livingston     v.     Moingona     Coal     Co. 

(1878),  49  Iowa  369,  10-696. 
Livingstone     v.     Rawyards     Coal     Co. 


(1880),  L.  R.  5,  H.  L.    (Eng.)    25, 

10-291. 
Lockhart    v.    Rollins    (1889),    2    Idaho 

540,  2  Idaho  (West  Ed.)  503,  16-16. 
Lockhart  v.  Wills  (1898),  9  N.  M.  344, 

19-497. 
Lockwood  v.  Lunsford   (1874),  56  Mo. 

68,  7-532. 
Locust   Mountain   Coal    &   Iron   Co.   v. 

Gorrell  (1872),  9  Phila.  (Pa.)   247, 

5-129. 
Logan   v.   Dils    (1870),   4  W.   Va.   397, 

14-662. 
i^ogan  v.  Driscoll   (1862),  19  Cal.  623, 

6-172. 
Logan  v.  Green   (1846),  39  N.  C.  370, 

10-322. 
Logan  v.   Washington   County    (1857), 

29  Pa.  St.  373,  14-108. 
Lombardo  v.  Ferguson   (1860),  15  Cal. 

372,   5-588. 
London,  Bishop  of  v.  Web    (1718),  P. 

Wms.   (Eng.)   527,  7-247. 
Lonkey  &  Smith  v.  Succor  Mill  &  Min- 
ing Co.   (1874),  10  Nev.  17,  1-411. 
Lonsdale,   Earl   of  v.   Curwen    (1799), 

3  Bligh   O.   S.    (Eng.)    168,   7-693. 
Lord  Abinger  v.  Ashton   (1872),  L.  R. 

17   Eq.    (Eng.)    358,    6-1. 
Lord  Dudley  v.  Lord  Warde  (1751),  1 

Ambl.    (Eng.)    113,   6-34. 
Lord  Montjoy's  Case,  Earl  of  Hunting- 
ton  &    (25  Eliz.),  4  Leon.    (Eng.) 

147,  9-175. 
Lord's  Ex'rs  v.  Carbon  Iron  Mfg.  Co. 

(1884),   38  N.   J.  Eq.  452,   15-695. 
Lorimer    v.    Lewis     (1843),    1    Morr. 

(Iowa)    253,   12-437. 
Lovering  v.   Buck  Mountain   Coal   Co. 

(1867),  54  Pa.  St.  291,  12-535. 
Lowry   v.    Silver   City   Gold   &   Silver- 
Mining  Co.    (1900),  179  U.  S.  196, 

21-113. 
Lowther  Oil  Co.  v.  Guffey    (1903),  52 

W.  Va.  88,  22-545. 
Lowther    Oil    Co.    v.    Miller-Sibley    Oil 

Co.    (1903),    53    W.    Va.    501,    22- 

656. 
Luckhart  v.  Ogden  (1866),  30  Cal.  547, 

2-601. 
Lumaghi  v.  Neuber  (1873),  57  111.  250, 

3-125. 
Lunsford  v.  La  Motte  Lead  Co.  (1873), 

54  Mo.  426,  9-308. 
Lupton     v.     White     (1808),     15     Ves. 

(Eng.)    432,  2-430. 
Lycoming    Fire    Ins.    Co.    v.    Schwenk 
(1880),  95  Pa.  St.  89,  8-53. 


838        Table  of  Cases  for  Morrison's  Mining  Reports. 


Lyell  &  Teller  v.   Sanbourn    (1851),  2 

Mich.  109,  1-313. 
Lykens  Valley  Coal  Co.  v.  Dock  (1869), 

62  Pa.  St.  232,  8-570. 
Lynch  v.   Burford    (1901),  201  Pa.   52, 

21-611. 
Lynch     v.     Versailles     Fuel     Gas     Co. 

(1895),  165  Pa    518,  18-149. 
Lynn's   Appeal    (1857),   31   Pa.    St.   44, 

15-126. 
Lyon   v.    Gormley    (1866),    53    Pa.    St. 

261,  5-383. 
Lyon  v.  Miller    (1855),  24  Pa.  St.  392, 

10-85. 
Lyon  v.  Woodman   (U.  S.  D.  C.  1870), 

2  Leg.  Gaz.  81,  7-493. 

M. 

Macbryde  v.  Weeks  (1856),  22  Beav. 
(Eng.)  533,  13-346. 

Madden  v.  Connell  (1899),  30  Can. 
Sup.  Ct.  109,  20-158. 

Madison  v.  Garfield  Coal  Co.  (1901), 
114  Iowa  56,   21-358. 

Maeris  v.  Bicknell  (1857),  7  Cal.  262, 
1-601. 

Magnet  Min.  Co.  v.  Page  &  P.  Silver- 
Mining  Co.  (1874),  9  Nev.  346, 
7-540. 

Mahony  Min.  Co.  v.  Bennett  (U.  S.  C. 
C.    1878),   5   Sawy.    141,    7-133. 

Maine  Boys'  Tunnel  Co.  v.  Boston  Tun- 
nel Co.   (1869),  37  Cal.  41,  12-247. 

Malaby  v.  Rice  (1900),  15  Colo.  App. 
364,  21-29. 

Mallett  v.  Uncle  Sam  Gold  &  Silver- 
Mining  Co.  (1865),  1  Nev.  188, 
1-17. 

Maloney  v.  King  (1901),  25  Mont.  188, 
21-278. 

Maloney  v.  Love  (1898),  11  Colo.  App. 
288,   19-310. 

Mammoth  Vein  Consol.  Coal  Co.'s  Ap- 
peal  (1867),  54  Pa.  St.  183,  7-460. 

Mandlebaum  v.  North  American  Min. 
Co.   (1857),  4  Mich.  465,  5-506. 

Manganese  Iron  Ore  Co.  v.  Trotter 
(1878),  29  N.  J.  Eq.  561,  3-132. 

Manning  v.  Frazier  (1880),  96  111. 
279,  8-307. 

Mansfield,  Earl  of  v.  Blackburne 
(1840),  6  Bing.  N.  Cas.  (Eng.) 
426,   6-36. 

Manuel  v.  Wulff  (1894),  152  U.  S.  505, 
18-85. 

Manufacturers'  Gas  &  Oil  Co.  v.  Indi- 
ana Natural  Gas  &  Oil  Co.  (1900), 
155  Ind.  461,  20-672. 


Manufacturers'  Gas  &  Oil  Co.  v.  Indi- 
ana Natural  Gas  &  Oil  Co.  (1900), 
155    Ind.    545,    21-102. 

Manufacturers'  Gas  &  Oil  Co.  v.  Indi- 
ana Natural  Gas  &  Oil  Co.   (1900), 

155  Ind.  566,  21-139. 

Manufacturers'  Gas  &  Oil  Co.  v.  Indi- 
ana Natural  Gas  &  Oil  Co.   (1901), 

156  Ind.  679,  21-194. 
Manufacturers'    Natural     Gas    Co.     of 

Indianapolis   v.    Leslie    (1898),    22 

Ind.  App.  677,  19-566. 
Manville  v.  Parks   (1883),  7  Colo.  128, 

15-565. 
Mare   v.    Charles    (1856),    5    E.    &    B. 

(Eng.)    978,   2-124. 
Marker    v.    Kenrick    (1853),    12    C.    B. 

(Eng.)   187,  2-98. 

Markle  v.  Wilbur  (1901),  200  Pa.  457, 
21-532. 

Marquart  v.  Bradford    (1872),  43  Cal. 

526,   5-528. 
Marquis  of  Bute  v.  Thompson   (1844), 

13  M.  &  W.  (Eng.)  487,  8-371. 
Marsh     v.     Holley     (1875),     42     Conn. 

453,   14-687. 
Marshall  v.  Forest  Oil  Co.   (1901),  198 

Pa.  83,  21-179. 

Marshall  v.  Mellon  (1897),  179  Pa.  371, 

18-548. 
Marshall   Silver-Mining  Co.  v.  Kirtley 

(1888),   12  Colo.   410,   16-6. 
Marston    v.    Simpson    (1880),    54    Cal. 

189,  13-36. 

Martin  &  Davis  v.  Browner  (1858),  11 
Cal.  12,   1-613. 

Martin  v.  Porter  (1839),  5  M.  &  W. 
(Eng.)   351,  10-74. 

Marvin  v.  Brewster  Iron-Mining  Co. 
(1874),   55   N.   Y.   538,    13-40. 

Marye  v.  Strouse  (U.  S.  C.  C.  1880), 
5  Fed.  483,  6  Sawy.  204,  2-294. 

Mason  v.  Norris    (1871),  18  Grant  Ch. 

(U.  C.)    500,   11-140. 
Massey   v.    Davies    (1794),   2   Ves.    Jr. 

(Eng.)    317,    1-247. 

Massot  v.  Moses  (1871),  3  S.  C.  168, 
8-607. 

Mateer   v.    Brown    (1850),    1    Cal.    221, 

7-156. 
Mather  v.  Ministers  of  Trinity  Church 

(1817),    3    Serg.    &   R.    (Pa.)    509, 

14-472. 

Mather   v.   Rillston    (1895),    156    U.    S. 

391,    18-165. 
Mathews   v.   Peoples'   Natural   Gas  Co. 

(1897),  179  Pa.  165,  18-552. 


Table  of  Cases  for  Morrison's  Mining  Eeports. 


839 


Mattingly     v.     Lewisohn     (1893),     13 

Mont.  508,  17-693. 
Matulys  v.   Philadelphia  &  R.   Coal  & 

Iron   Co.    (1902),   201    Pa.   70,    21- 

745. 
Maturian  v.  Tredinnick   (1864),  10  L. 

T.  N.  S.   (Eng.)    331,  13-15. 
Maule  v.  Crawshay   (1818),  1  Swanst. 

(Eng.)    495,    11-223. 
Maute  v.  Gross  (1867),  56  Pa.  St.  250, 

11-123. 
Mawson    v.    Fletcher    (1870),    L.    R.    6 

Ch.  App.    (Eng.)    91,   14-657. 
Maye  v.   Yappen    (1863),   23   Cal.   306, 

10-101. 
Mayer    v.    Child    (1873),    47    Cal.    142, 

13-399. 
Mays    v.    Dwight    (1876),    82    Pa.    St. 

462,    10-453. 
McAleer  v.   McMurray    (1868),   58   Pa. 

St.   126,   6-606. 
McAndrews  v.  Tippett  (1876),  39  N.  J. 

L.  105,  14-616. 
McBee  v.  Loftis  &  Hampton    (1846),  1 

Strobh.   (S.  C.)   90,  3-222. 

McBrayer  v.  Harding  (1850),  42  N.  C. 
1,    7-288. 

McCabe    v.    Burns    (1870),    66    Pa.    St. 
356,   6-665. 

McCahan  v.   Wharton    (1888),  121  Pa. 

St.   424,    16-239. 
McCann  v.  McMillan    (1900),  129  Cal. 

350,  21-6. 
McCann  v.  Wallace  (U.  S.  C.  C.  1902), 

117  Fed.  936.  22-389. 

McCarron  v.   O'Connell    (1857),   7   Cal. 

152,    14-429. 
McCarthy   v.    Speed    (1898),    11    S.    D. 

362,    19-615. 
McCarthy  v.  Speed   (1899),  12  S.  D.  7, 

20-124. 
McCauley  v.   McKeig    (1889),   8   Mont. 

389,  16-1. 
McClay  v.   Western   Pennsylvania  Gas 

Co.  (1902),  201  Pa.  197,  21-760. 

McClelland    v.    Snider    (1856),    18    111. 

58,  2-531. 
McClintock   v.    Bryden    (1855),    5    Cal. 

97,   12-443. 
McConnell   v.    Denver    (1868),   35   Cal. 

365,    11-432. 
McCormick  v.  Horan    (1880),  81  N.  Y. 

86,   5-154. 
McCormick    v.    Rossi    (1886),    70    Cal. 

474,    15-433. 

McCormick    v.     Varnes     (1878-80),     2 
Utah  355,   9-505. 


McCracken  v.  Gumbert  (1890),  131  Pa. 

36,   17-279. 
McCullough   v.    Moss    (1846),    5    Denio 

(N.   Y.)    567,    13-440. 
McCurdy  v.  Alpha  G.  &  S.  Mining  Co. 

(1867),  3  Nev.  27,  3-278. 

McDermott  Min.  Co.  v.  McDermott 
(1902),  27   Mont.  143,  22-338. 

McDonald,  Graham  &  Stoddard  v. 
Askew   (1865),  29  Cal.  201,   1-660. 

McDonald  v.  Bear  River  &  A.  Water  & 
Mining  Co.  (1859),  13  Cal.  220,  1- 
626. 

McDonald  v.  Bear  River  &  A.  Water  & 
Mining  Co.  (1860),  15  Cal.  145,  1- 
639. 

McDowell  v.   Hendrix    (1879),   67   Ind. 

513,  9-96. 
McDowell  v.    Simms    (1849),   41  N.   C. 

278,   6-476. 
McEvoy  v.  Hyman   (U.  S.  C.  C.  1885), 

25  Fed.  539,  15-300. 

McEvoy  v.  Hyman  (U.  S.  C.  C.  1885), 
25  Fed.  596,   15-397. 

McGarrahan  v.  New  Idria  Min.  Co. 
(1874),   49  Cal.   331,   11-641. 

McGarrahan  v.  New  Idria  Min.  Co. 
(1877),   96   U.    S.   316,    11-665. 

McGarrity  v.  Byington   (1859),  12  Cal. 

426,  2-311. 
McGee  v.  Stone   (1858),  9  Cal.  600,  2- 

238. 
McGillivray   v.   Evans    (1864),   27   Cal. 

92,   11-209. 
McGinnis  v.  Egbert  (1884),  8  Colo.  41, 

15-329. 
McGoon  v.  Ankeny   (1850),  11  111.  558, 

1-9. 
McGowan    v.    Bailey    (1892),    146    Pa. 

572,  17-425. 
McGowan  v.  La  Plata  Mining  &  Smelt- 
ing Co.    (U.   S.  C.  C.  1882),  3  Mc- 

Crary  393,  10-59. 
McGraw  v.   Fletcher    (1876),   35   Mich. 

104,  15-98. 
McGregor    v.    Camden    (1899),    47    W. 

Va.  193,  20-274. 

McHose  v.   Fulmer    (1873),  73  Pa.   St. 

365,    10-173. 
Mclntyre  v.  Ajax  Min.  Co.    (1899),  20 

Utah  323,   20-142. 
McKinley  v.  Wheeler  (1888),  130  U.  S. 

630,   16-65. 
McKinley    Creek    Min.    Co.    v.    Alaska 

United  Min.  Co.   (1902),  183  U.  S. 

563,  21-730. 


840 


Table  of  Cases  for  Morrison's  Mining  Reports. 


McKinney  v.  Smith  (1863),  21  Cal.  374, 

1-650. 
McKeon  v.  Bisbee   (1858),  9  Cal.   137, 

2-309. 
McKnight  v.  Kreutz  (1866),  51  Pa.  St. 

232,   6-305. 
McKnight    v.    Manufacturers'    Natural 

Gas   Co.    (1892),   146   Pa.   185,    17- 

429. 
McKnight    v.    Ratclifl    (1863),    44    Pa. 

St.   156,   11-3  64. 
McLaughlin   v.    Kelly    (1863),   22   Cal. 

212,   7-445. 
McLaughlin  v.  Powell    (1875),  50  Cal. 

64,  10-424. 
McLean   v.    Blue   Point   Gravel-Mining 

Co.   (1876),  51  Cal.  255,  10-22. 

McLean  County  Coal  Co.  v.  Lennon 
(1879),  91  111.  561,   10-277. 

McLean  County  Coal  Co.  v.  Long 
(1876),   81   111.    359,    10-193. 

McNish    v.    Stone    (Pa.    1879),    17-22. 

Mead  v.  Hamond  (8  Geo.  I.),  1 
Strange   (Eng.)   505,  9-672. 

Meeker     v.     Chicago     Cast-Steel      Co. 

(1876),    84    111.    276,    10-202. 
Mellors   v.    Shaw   &   Unwin    (1861),    1 

B.  &  S.    (Eng.)    437,   9-678. 
Melton  v.  Lambard  (1876),  51  Cal.  258, 

14-695. 
Merced    Min.    Co.   v.    Fremont    (1857), 

7  Cal.  130,  7-309. 
Merced    Min.    Co.    v.   Fremont    (1857), 

7  Cal.  317,  7-313. 
Mercer    Min.    &   Mfg.    Co.    v.    McKee's 

Adm'r    (1874),   77   Pa.   St.   170,   5- 

531. 
Merrick  v.   Peru   Coal   Co.    (1871),   61 

111.  472,   3-583. 
Merrimac  Min.   Co.  v.   Bagley    (1866), 

14    Mich.    501,    13-461. 

Merrimac  Min.  Co.  v.  Levy   (1867),  54 

Pa.    St.    227,    13-467. 
Merrimack     Mfg.      Co.     v.      Quintard 

(1871),  107  Mass.  127,   2-346. 

Merritt   v.    Judd    (1859),    14    Cal.    59, 

6-62. 
Metcalf   v.    Prescott    (1891),   10   Mont. 

283,    16-137. 
Meydenbauer  v.   Stevens    (U.   S.  C.   C. 

1897),  78  Fed.  787,  18-578. 
Meyendorf  v.  Frohner  (1879),  3  Mont. 

282,  5-559. 
Meyers     v.     Farquharson     (1873),     46 

Cal.   190,   3-217. 
Mexborough  v.  Bower   (1843),  7  Beav. 

(Eng.)    127,   2-92. 


Mexican  &  South  American  Co.,  In  re 

(1859),  4  De  G.  &  J.    (Eng.)    544, 

2-36. 
Mickle   &    Co.    v.    Douglas    (1888),    75 

Iowa    78,    17-137. 
Migeon  v.  Montana  Cent.  Ry.  Co.    (U. 

S.    C.    C.    1896),    77    Fed.    249,    1C- 

446. 
Miller    v.    Butterfield    (1889),    79    Cal. 

62,   17-222. 

Miller  v.  Chester  Slate  Co.  (1889),  123 

Pa.  St.  81,  16-288. 
Miller     v.    Hartford     &     S.     Ore      Co. 

(1874),  41  Conn.   112,  3-353. 
Miller   v.   Mickel    (1886),   9   Colo.   331, 

15-355. 
Miller  v.   Sparks    (1878),  4  Colo.   303, 

6-231. 
Miller    v.    Taylor    (1881),    6    Colo.    41, 

9-547. 
Mills  v.  Fletcher   (1893),  100  Cal.  142, 

17-671. 
Milroy  v.  Spurr  Mountain  Iron-Mining 

Co.   (1880),  43  Mich.  231,  12-53. 

Mine  Hill  &  S.  H.  R.  Co.  v.  Lippincott 
(1878),   86   Pa.    St.   468,    12-555. 

Missouri  Furnace  Co.  v.  Cochran  (U. 
S.  C.  C.  1881),  8  Fed.  463,  10-309. 

Mitchell    v.  Dors     (1801),    6    Ves.    Jr. 

(Eng.)    147,    7-250. 
Mitchell  v.  Hagood   (1S56),  6  Cal.  148, 

1-506. 
Mitchell    v.    McCall    (1874),    25    Gratt. 

(Va.)    300,    5-454. 
Mokelumne   Hill   Canal   &  Mining   Co. 

v.   Woodbury    (1859),   14   Cal.   2G5, 

12-6. 
Money  v.  Lower  Vein  Coal  Co.   (1881), 

55  Iowa  671,  10-56. 
Monroe   v.   Northern   Pac.   Coal-Mining 

Co.   (1875),  5  Or.  509,  2-652. 

Mont  Blanc  Consol.  Gravel-Mining  Co. 

v.  Debour  (1882),  61  Cal.  364,  15- 

286. 
Montana  Co.,  Ltd.  v.  Clark  (U.  S.  C.  C. 

1890),  42  Fed.  626,   16-80. 

Montana  Min.  Co.,  Ltd.  v.  St.  Louis 
Mining  &  Milling  Co.  of  Montana 
(1898),  20  Mont.  394,   19-218. 

Montana  Min.  Co.,  Ltd.  v.  St.  Louis 
Mining  &  Milling  Co.  of  Montana 
(U.  S.  C.  C.  1900),  102  Fed.  430, 
20-507. 

Montana  Ore-Purchasing  Co.  v.  Boston 
&  M.  Consol.  Copper  &  Silver-Min- 
ing Co.  (1897),  20  Mont.  336,  19- 
186. 


Table  of  Cases  for  Morrison's  Mining  Reports.        841 


Montana  Ore-Purchasing  Co.  v.  Boston 
&  M.  Consol.  Copper  &  Silver-Min- 
ing Co.  (1899),  22  Mont.  159, 
20-1. 

Montana  Ore-Purchasing  Co.  v.  Boston 
&  M.  Consol.  Copper  &  Silver-Min- 
ing Co.  (1902),  27  Mont.  288,  22- 
471. 

Montana  Ore-Purchasing  Co.  v.  Boston 
&  M.  Consol.  Copper  &  Silver-Min- 
ing Co.  (1903),  27  Mont.  410,  22- 
555. 

Montjoy's  Case,  Lord,  Earl  of  Hunting- 
ton &  (25  Eliz.),  4  Leon.  (Eng.) 
147,  9-175. 

Moody  v.  McDonald  (1854),  4  Cal.  297, 
2-187. 

Moore  v.  Ferrell  (1846),  1  Ga.  7,  7- 
281. 

Moore  v.  Hamerstag  (1895),  109  Cal. 
122,  18-256. 

Moore  v.  Smaw  (1861),  17  Cal.  199, 
12-418. 

Moore  v.  Thompson  (1873),  69  N.  C. 
120,    1-221. 

Moore  v.  Valentine  (1877),  77  N.  C. 
188,  6-112. 

More  v.  Massini  (1867),  32  Cal.  590, 
7-455. 

Morenhaut  v.  Wilson  (1877),  52  Cal. 
263,   1-53. 

Morgan  v.  McKee  (1874),  77  Pa.  St. 
228,  3-128. 

Morgan  v.  Negley  (1866),  53  Pa.  St. 
153,    7-653. 

Morgan  v.  Powell  (1842),  3  Q.  B. 
(Eng.)   278,  10-79. 

Morgan  v.  Skiddy  (1875),  62  N.  Y. 
319,    7-74. 

Moritz  v.  Lavelle  (1888),  77  Cal.  10, 
16-236. 

Morris  v.  De  Witt  (1830),  5  Wend.  (N. 
Y.)    71,    12-680. 

Morris  v.  Smith  (1783),  3  Dougl. 
(Eng.)    279,   6-22. 

Morrison  v.  Gold  Mountain  Gold-Min- 
ing Co.  (1877),  52  Cal.  306,  13- 
578. 

Morrison  v.  Regan  (1902),  8  Idaho 
291,    22-69. 

Morrow  v.  Waltz  (1851),  18  Pa.  St. 
118,   2-520. 

Morton  v.  Solambo  Copper-Mining  Co. 
(1864),  26  Cal.  527,  4-463. 

Morton  v.  State  of  Nebraska  (1874), 
21  Wall.   (U.  S.)   660,  12-451. 

Moss  v.  Livingston  (1850),  4  N.  Y. 
208,  2-119. 


Moss  v.  Oakley  (1842),  2  Hill  (N.  Y.) 

265,    12-1. 
Moss  v.  Rossie  Lead-Mining  Co.  (1843), 

5  Hill   (N.  Y.)    137,   1-289. 

Mount   Diablo    Mill   &   Mining   Co.   v. 

Callison  (U.  S.  C.  C.  1879),  5  Sawy. 

439,    9-616. 
Mt.  Rosa  Mining,  Milling  &  Land  Co. 

v.  Palmer  (1899),  26  Colo.  56,  19- 

696. 
Mountain  King  Lode  v.  Little  Chicago 

Lode  (U.  S.  C.  C.  Colo.  1880),  13- 

289. 
Moxon   v.   Wilkinson    (1876),   2   Mont. 

421,    12-602. 
Moyers  v.  Tiley  (1858),  32  Pa.  St.  267, 

8-474. 
Mudsill  Min.  Co.,  Ltd.  v.  Watrous   (U. 

S.  C.  C.  1894),  61  Fed.  163,  18-1. 

Muhlenberg    v.    Henning    (1887),    116 
Pa.  St.  138,  15-423. 

Muldoon  v.  Brown  (1899),  21  Utah  121, 

20-269. 
Munn  v.  Stone  (1849),  4  Cush.  (Mass.) 

146,  13-102. 
Munro   v.    King    (1877),    3    Colo.    238, 

12-160. 
Munroe    v.    Ivie    (1879),    2    Utah    535, 

8-127. 
Munson    v.    Tryon     (1867),     6    Phila. 

(Pa.)    395,   7-469. 
Murley  v.   Ennis    (1874),   2   Colo.   300, 

12-360. 

Murphy  v.   Cobb    (1880),   5   Colo.   281, 

5-330. 
Murray    v.    Allred    (1897),    100    Tenn. 

100,    19-169. 
Murray  v.  Haverty  (1873),  70  111.  318, 

14-325. 
Murray  v.   Polglase    (1899),   23   Mont. 

401,   20-296. 
Murray   v.    Tingley    (1897),    20    Mont. 

260,    19-137. 
Murray,   Crawford  &  v.  Wick    (1868), 

18  Ohio  St.  190,  8-541. 

Murray  Hill  Mining  &  Milling  Co.  v. 

Havenor    (1901),   24   Utah  73,   21- 

668. 
Musier  v.  Trumpbour  (1830),  5  Wend. 

(N.  Y.)    274,   11-260. 

Myers  v.   South  Feather  River  Water 
Co.    (1858),   10   Cal.    579,   2-541. 

Myers  v.   South  Feather  River  Water 
Co.    (1859),   14   Cal.   268,   4-566. 

Myers  v.  Spooner   (1880),  55  Cal.  257, 
9-519. 


842        Table  of  Cases  for  Morrison's  Mining  Eeports. 


N. 

National  Copper  Co.  v.  Minnesota  Min. 

Co.  (1885),  57  Mich.  83,  17-44. 
National   Min.   Co.    v.    Powers    (1879), 

3  Mont.  344,  1-234. 
National  Oil  &  Pipe  Line  Co.  v.  Teel 

(1902),    95    Tex.    586,    22-263. 
National  Transit  Co.  v.  Weston  (1888), 

121  Pa.  485,   17-143. 
Natoma  Water  &  Mining  Co.  v.  Bugbey 

(1877),  96  U.  S.  165,   13-211. 
Natoma    Water   &   Mining   Co.    v.    Mc- 
Coy   (1863),  23  Cal.   491,  4-590. 
Neall  v.  Hill  (1860),  16  Cal.  145,  1-80. 
Neel   v.    Neel    (1852),    19    Pa.    St.    323, 

14-363. 
Neilson  v.  Champaigne  Mining  &  Mill- 
ing  Co.    (U.    S.    C.    C.    1901),    111 

Fed.  655,  21-664. 
Neilson  v.  Champagne  Mining  &  Mill- 
ing  Co.    (U.    S.    C.    C.    1902),    119 

Fed.  123,  22-438. 
Neldon   v.    Smith    (1873),  36   N.   J.   L. 

148,   2-370. 
Nelson  v.  O'Neal   (1871),  1  Mont.  284, 

4-275. 
Nesbitt  v.  Delamar's  Nevada  Gold-Min- 
ing Co.    (1898),   24   Nev.    273,    19- 

286. 
Neumoyer  v.   Andreas    (1868),   57   Pa. 

St.  446,  9-292. 
Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co. 

(U.    S.    C.   C.    1899),   98    Fed.    673, 

20-283. 
Nevada  Water  Co.  v.  Powell  (1867),  34 

Cal.  109,  4-253. 
New   Boston    Coal    &    Mining    Co.   v. 

Pottsville    Water    Co.     (1867),    54 

Pa.  St.  164,  5-118. 
"New     Discovery"    v.    "Little     Chief" 

Lode    (U.   S.  C.  C.   1878-79),  Fed. 

Cas.  No.  13,723,  9-614. 
New   Jersey   Franklinite   Co.   v.   Ames 

(1859),  12  N.  J.  Ch.  512,  10-436. 
Newton  v.  Nock  (1880),  43  L.  T.  N.  S. 

(Eng.)    197,    7-611. 
New  York  Iron  Mine  v.  Citizens'  Bank 

(1880),   44   Mich.   344,   2-171. 
New    York    Iron    Mine    v.    First    Nat. 

Bank     of     Negaunee      (1878),     39 

Mich.  644,  1-453. 
New    York   &   C.    Mining   Syndicate   & 

Co.  v.  Rogers    (1888),  11  Colo.   6, 

17-123. 
Nicholls  v.   Diamond    (1853),  23  L.   J. 

Exch.    (Eng.)    1,    2-121. 
Nicklin  v.  Williams    (1854),   10  Exch. 

(Eng.)    259,    13-650. 


Niles  v.  Kennan   (1900),  27  Colo.  502, 
21-33. 

Nisbet    v.    Nash    (1878),    52    Cal.    540, 

11-531. 
Noble  v.  Sylvester   (1869),  42  Vt.  146, 

12-62. 
No.    5    Min.    Co.    v.    Bruce    (1878),    4 

Colo.    293,    3-146. 
Nolan  v.  Lovelock  (1870),  1  Mont.  224, 

9-360. 
Noonan  v.  Pardee  (1901),  200  Pa.  474, 

21-517. 

Norris   &   Foltz   v.    Tayloe    (1868),   49 

111.    17,    1-383. 
Northam  v.   Bowden    (1855),  11   Exch. 

(Eng.)     70,    14-485. 
North  American  Exploration  Co.,  Ltd. 

v.  Adams   (U.  S.  C.  C.  1900),  104 

Fed.  404,  21-65. 
North    Georgia    Min.    Co.    v.    Latimer 

(1874),  51  Ga.  47,   12-367. 
Northmore   v.    Simmons    (U.    S.   C.   C. 

1899),   97    Fed.    386,    20-128. 
North  Noonday  Min.  Co.  v.  Orient  Min. 

Co.   (U.  S.  C.  C.  1880),  1  Fed.  522, 

6  Sawy.  299,  9-529. 
North  Noonday  Min.  Co.  v.  Orient  Min. 

Co.    (U.    S.    C.    C.    1880),    11    Fed. 

125,    6    Sawy.    503,    9-524. 
North  Pennsylvania  Coal  Co.  v.  Snow- 
den    (1862),    42    Pa.    St.    488,    14- 

294. 
Northwestern  Ohio  Natural  Gas  Co.  v. 

Ullery  (1903),  68  Ohio  St.  259,  22- 

647. 
Noteware    v.    Sterns    (1871),    1    Mont. 

311,    4-650. 
Noyes  v.  Mantle  (1888),  127  U.  S.  348, 

15-611. 

O. 

Oakford  v.  Hackley  (U.  S.  C.  C.  1899). 

92  Fed.  38,  19-708, 
Ober  v.  Schenck   (1901),  23  Utah  614, 

21-460. 
O'Donnell  v.   Brehen    (1873),   36  N.   J. 

L.   257,   13-397. 
Offerman   v.    Starr    (1845).    2    Pa.    St. 

394,    10-614. 
Ogle's  Estate,  In  re   (1846),  5  Pa.  St. 

15,   7-189. 
Ohio   Oil   Co.   v.    Indiana    (1900),    177 

U.    S.    190,    20-466. 
Oil  Creek  &  A.  River  R.  Co.  v.  Penn- 
sylvania   Transp.    Co.     (1876),    83 

Pa.  St.  160,  2-421. 
O'Keiffe  v.  Cunningham  (1858),  9  Cal. 

589,  9-451. 


Table  of  Cases  foe  Morrison's  Mining  Beports.       843 


Old    Telegraph    Min.   Co.    v.    Central 

Smelting  Co.    (1876),  1  Utah  331, 

7-555. 
Oliphant  v.  Woodburn  Coal  &  Mining 

Co.    (1884),   63    Iowa   332,    15-365. 
Olive  Land  &  Development  Co.  v.  Olm- 

stead  (U.  S.  C.  C.  1900),  103  Fed. 

568,  20-700. 
Omaha  &  G.   Smelting  &  Refining  Co. 

y.  Tabor   (1889),  13  Colo.  41,   16- 

184. 
Omar   v.   Soper    (1888),   11   Colo.    380, 

15-496. 
Ophir   Silver-Mining  Co.   v.   Carpenter 

(1868),  4  Nev.  534,  4-640. 
Ophir   Silver-Mining  Co.   v.   Carpenter 

(1871),  6  Nev.  393,  4-653. 
Oreamuno  v.  Uncle  Sam  Gold  &  Silver- 
Mining   Co.    (1865),    1    Nev.    215, 

1-32. 
Oregon  Iron  Co.  v.  Trullenger   (1867), 

3  Or.  1,  4-247. 
Oregon  King  Min.  Co.  v.  Brown  (U.  S. 

C.  C.   1902),  119   Fed.  48,   22-414. 
Orr  v.  Haskell    (1874),  2    Mont.    225, 

4-492. 
Oscamp    v.    Crvstal    River    Min.    Co. 

(1893),  58  Fed.  293,   17-651. 
Osgood   v.   El   Dorado   Water   &   Deep 

Gravel  Mining  Co.   (1880),  56  Cal. 

571,  5-37. 
Otaheite  Gold  &  Silver-Mining  &  Mill- 
ing Co.  v.  Dean  (U.  S.  C.  C.  1900), 

102  Fed.  929,  20-688. 
Outram  v.  Morewood     (1803),    3    East 

(Eng.)   346,  5-484. 
Overman  S.  M.  Co.  v.  American  S.  M. 

Co.  (1872),  7  Nev.  312,  2-251. 
Overman    Silver-Mining   Co.   v.    Corco- 
ran   (1880),   15  Nev.   417,   1-691. 
Owings  v.  Emery  (1847),  6  Gill  (Md.) 

260,   8-387. 


Pacific  Coast  Mining  &  Milling  Co.  v. 

Fick    (U.   S.   C.   C.  1883),   16   Fed. 

348,    16-75. 
Pacific  Coast  Mining  &  Milling  Co.  v. 

Spargo  (U.  S.  C.  C.  1883),  16  Fed. 

348,   16-75. 
Pacific  Land  &  Improvement  Co.  v.  El- 
wood   Oil   Co.    (U.   S.  C.  C.   1901), 

112  Fed.  4,  21-633. 
Packer  v.  Heaton    (1858),  9    Cal.  569, 

4-447. 
Page  v.  Parker   (1861),  43  N.  H.  363, 

6-544. 

Page  v.  Summers   (1886),  70  Cal.  121, 
15-617. 


Paine  v.  Griffiths   (U.  S.  C.  C.  1898), 

86  Fed.  452,   19-297. 
Palmer   v.    Moore    (1900),   L.   R.   App. 

Cas.    (Eng.)    293,   20-412. 
Palmer  v.   Williams    (1872),   24   Mich. 

328,    14-579. 
Pardee  v.  Murray  (1882),  4  Mont.  234, 

15-515.     . 
Parish    Fork    Oil    Co.   v.    Bridgewater 

Gas    Co.    (1902),    51    W.    Va.    583, 

22-145. 
Parke  v.  Kilham   (1857),  8  Cal.  77,  4- 

522. 
Parker  v.  Parker  (1880),  82  N.  C.  165, 

12-596. 
Parks,  People  ex  rel.  v.  Circuit  Judge 

Marquette    Co.    (1878),     38     Mich. 

244,  15-142. 
Parley's    Park    Silver-Mining     Co.    v. 

Kerr    (1889),    130    U.    S.    256,    17- 

201. 
Parrott  v.  Byers    (1871),  40  Cal.  614, 

13-505. 
Parrot    Silver  &  Copper  Co.  v.  Heinze 

(1900),   24   Mont.    485,    21-98. 
Parrot  Silver  &  Copper  Co.  v.  Heinze 

(1901),  25  Mont.  139,  21-232. 

Partridge  v.  McKinney  (1858),  10  Cal. 

181,    1-185. 
Partridge  v.   Scott    (1838),  3  M.  &  W. 

(Eng.)  220,  13-640. 

Patterson  v.  Hitchcock  (1877),  3  Colo. 
533,   5-542. 

Patterson  v.  Keystone  Min.  Co.  (1863), 
23  Cal.  575,   13-169. 

Patterson  v.  Keystone  Min.  Co.  (1866), 

30  Cal.  360,   13-171. 
Patterson  v.    Silliman    (1857),   28   Pa. 

St.  304,   11-327. 
Patton  v.  Axley   (1858),  50  N.  C.  440, 

8-472. 
Paull   v.   Halferty    (1869),   63   Pa.   St. 

46,  9-149. 
Paxton   v.    Bacon    Mill   &   Mining   Co. 

(1866),  2  Nev.  257,  3-512. 

Payne   v.    Elliot    (1880),    54    Cal.    339, 

14-515. 
Peabody  Gold-Mining  Co.  v.  Gold  Hill 

Min.  Co.   (U.  S.    C.    C.    1900),    106 

Fed.  241,  21-151. 

Peabody  Gold-Mining  Co.  v.  Gold  Hill 

Min.   Co.    (U.   S.   C.   C.   1901),  111 

Fed.  817,  21-591. 
Pearson  v.  Martin  (1875),  38  Wis.  265, 

15-95. 
Pease  v.  Brown  (1870),  104  Mass.  291, 

3-46. 


844        Table  of  Cases  for  Morrison's  Mining  Eeports. 


Peddie  v.  Donnelly  (1872),  1  Colo.  421, 

2-157. 
Pell  v.    Shearman     (1855),    10     Exch. 

(Eng.)   766,   10-89. 
Pence  v.  Langdon  (1878),  99  U.  S.  578, 

13-32. 
Penniman    v.  Winner    (1880),  54    Md. 

127,  2-448. 
Pennsylvania     Coal     Co.     v.     Costello 

(1859),  33  Pa.  St.  241,   15-47. 
Pennsylvania    Coal    Co.    v.    Sanderson 

(1880),  94  Pa.  St.  302,  11-79. 
Pennsylvania  Consol.  Min.  Co.  v.  Grass 

Valley   Exploration   Co.    (U.   S.   C. 

C.  1902),  117  Fed.  509,   22-306. 

Pennsylvania      Lead       Co.'s       Appeal 
(1880),  96  Pa.  St.  116,   11-84. 

Pennsylvania     Min.    Co.    v.    Owens     & 
Co.   (1860),  15  Cal.  135,  12-200. 

Pennsylvania  Min.  Co.  of  Colorado  v. 

Bales    (1902),   18   Colo.   App.    108, 

22-436. 
People  v.  Black  Diamond  Coal-Mining 

Co.    (1869),   37  Cal.   54,    14-162. 
People  v.   Bogart    (1872),   45   Cal.   73, 

12-512. 
People  v.  Williams  (1868),  35  Cal.  671, 

4-185. 
People  ex  rel.  Parks  v.  Circuit  Judge 

Marquette    Co.     (1878),    38    Mich. 

244,    15-142. 
People  ex  rel.  Calumet  Gold-Mining  & 

Milling  Co.  v.  De  France    (1902), 

29   Colo.   309,   22-61. 

People  ex  rel.  Breene  v.  District  Court 

Lake  Co.  (1900),  27  Colo.  465,  20- 

734. 
People   ex   rel.   Robinson   v.   Pittsburg 

R.    Co.    (1879),    53    Cal.    694,     12- 

518. 
People's  Gas  Co.  v.  Tyner   (1892),  131 

Ind.   277,    17-481. 
Perego  v.  Dodge  (1896),  163  U.  S.  160, 

18-364. 
Perigo   v.   Erwin    (U.   S.   C.   C.   1898), 

85  Fed.  904,  19-269. 
Perkins    v.    Prout    (1867),    47    N.    H. 

387,  2-139. 
Perkins  v.  Rice  (1816),  Litt.  Sel.  Cas. 

(Ky.)    218,   13-8. 
Perley  v.  Langley  (1834),  7  N.  H.  233, 

4-235. 
Perry   v.   Attwood    (1856),    6   E.   &  B. 

(Eng.)   691,  8-440. 
Perry  v.  Ricketts    (1870),  55  111.  234, 

9-687. 
Peters,    Krum    &,    v.    Mersher    (1887), 

116    Pa.    St.    17,    15-415. 


Peterson  v.  Whitebreast  Coal   &  Min- 
ing Co.  (1879),  50  Iowa  673,  11-1. 
Pharis  v.  Muldoon  (1888),  75  Cal.  284, 

15-348. 
Phelan  v.  Hazard    (U.  S.  C.  C.  1878), 

5  Dill.   (U.  S.)   45,  12-41. 
Phelps  v.  Church  of  Our  Lady,  Help 

of  Christians    (U.    S.  C.  C.   1902), 

115  Fed.  882,  22-233. 
Phenix  Mill  &  Mining  Co.  v.  Lawrence 

(1880),  55   Cal.   143,    12-281. 
Philadelphia  &  R.  Coal  &  Iron  Co.  v. 

Taylor    (1873),  5  Leg.  Gaz.    (Pa.) 

392,  5-133. 
Phillips   v.    Homfray    (1871),    L.   R.   6 

Ch.   App.    (Eng.)    770,   14-677. 
Phillips     v.     Jones     (1839),     9      Sim. 

(Eng.)   519,  8-344. 

Phillips  &  Ray  v.  Jones'  Adm'r  (1854), 
20   Mo.   67,   2-522. 

Phillips   v.    Reeder    (1866),    18    N.    J. 

Eq.    95,    11-419. 
Phillpotts  v.  Blasdel  (1872),  8  Nev.  61, 

4-341. 
Phipps  v.   Hully    (1883),  18  Nev.  133, 

15-350. 
Phoenix  Water  Co.  v.  Fletcher  (1863), 

23  Cal.  482,   15-185. 
Pierce    v.    Bucklin     (1863),    7     Allen 

(Mass.)   261,  12-340. 

Pierce  v.  Pierce  (1885),  55  Mich.  629, 

15-675. 
Pinch   v.   Anthony     (1865),    10    Allen 

(Mass.)    470,    2-593. 

Pittsburg   Coal   Co.   v.   Foster    (1868), 

59  Pa.   St.   365,   10-116. 
Pittsburgh   Coal-Mining   Co.   v.   Green- 
wood   (1870),   39   Cal.   71,    12-123. 
Pittsburg  Min.  Co.  v.  Spooner   (1889), 

74  Wis.  307,  17-226. 
Plant  v.   Stott    (1869),   21   L.  T.   Rep. 

N.  S.    (Eng.)    106,   6-175. 
Pollard  v.  Clayton  (1855),  1  Kay  &  J. 

(Eng.)   4C2,  13-334. 
Pollard  v.  Shively  (1S80),  5  Colo.  309, 

2-229. 
Pool  v.  Lewis    (1870),   41   Ga.   162,   5- 

523. 
Porterfield's  Appeal   (1874),  77  Pa.  St. 

221,   11-142. 
Portland  Gold-Mining  Co.  v.  Flaherty 

(U.   S.   C.  C.  1901),  111   Fed.  312, 

21-555. 
Potter  v.  Rend    (1902),    201    Pa.    318, 

22-1. 
Poughkeepsie     &     E.    R.    Co.,    In     re 

(1872),  63  Barb.    (N.  Y.)    151,  12- 

552. 


Table  of  Cases  for  Morrison's  Mining  Eeports.        845 


Powell  v.  Burroughs  (1867),  54  Pa.  St. 

329,  8-531. 
Powell    v.    Reese    (1837),    7    A.    &    E. 

(Eng.)   426,  5-676. 
Power    v.    Sla    (1900),    24    Mont.    243, 

20-659. 
Pralus    v.    Jefferson    G.    &    S.    M.    Co. 

(1868),   34   Cal.   558,    12-473. 
Pralus  v.  Pacific  G.  &  S.  M.  Co.  (1868), 

35  Cal.  30,  12-478. 
Pratt  v.  Machinists'  Nat.  Bank  (1877), 

123  Mass.   110,    13-590.  ' 
Pratt    v.    Taunton    Copper    Mfg.    Co. 

(1877),  123  Mass.  110,   13-590. 
Pratt,  Spencer  &  v.  Winselman  &  Clow 

(1871),  42  Cal.  479,  2-334. 
Prendergast  v.  Turton    (1841),  1  Y.  & 

Coll.    (Eng.)    98,    8-167. 
Prescott  v.  Wells,  Fargo  &  Co.  (1867), 

3  Nev.   82,   6-89. 
Pretty     v.     Solly      (1859),     26     Beav. 

(Eng.)    606,  8-301. 
Price  v.  Griffith   (1851),  1  De  G.,  M.  & 

G.     (Eng.)     80,     13-330. 
Priest  v.   Union   Canal   Co.    (1856),   6 

Cal.  170,  4-515. 
Prince  v.   Lamb    (1900),   128   Cal.   120, 

20-419. 
Pringle    v.    Taylor     (1809),    2    Taunt. 

(Eng.)   150,  2-458. 
Proctor  v.  Jennings  (1870),  6  Nev.  83, 

4-265. 
Proprietors  of  Mexican  Mill  v.  Yellow 
Jacket    Silver-Mining    Co.    (1868), 
4  Nev.  40,   11-175. 
Prosser   v.    Parks    (1861),   18   Cal.    47, 

4-452. 
Proud   v.    Bates    (1865),   34   L.    J.   Ch. 

(Eng.)    406,    15-227. 
Providence   Gold-Mining   Co.   v.    Burke 

(1899),   6   Ariz.   323,    19-625. 
Putnam   v.    Smith    (1829),    4   Vt.    622, 

13-68. 
Pyne's  Appeal,   Roberts'   &    (1869),   60 
Pa.  St.  400,   10-560. 


Quarrington   v.   Arthur    (1842),   10   M. 

&  W.    (Eng.)    335,    15-255. 
Quicksilver  Min.   Co.   v.   Hicks    (U.    S. 

C.  C.  1868),  4  Sawy.  688,  11-98. 
Quigley  v.  Gillett  (1894),  101  Cal.  462, 

18-68. 
Quincy    Coal    Co.    v.    Hood    (1875),    77 

111.  68,    12-148. 
Quirk    v.    Falk    (1874),    47    Cal.    453, 

2-19. 


R. 

Raffetto  v.   Fiori    (1875),   50  Cal.  363, 

14-469. 
Raisbeck  v.  Anthony    (188S),  73  Wis. 

572,  17-148. 
Ralph     v.    Harvey     (1841),     1     Q.     B. 

(Eng.)   845,  11-273. 
Ralston   v.   Plowman    (1875),   1   Idaho 

595,  5-160. 
Ramsay  v.  Chandler  (1853),  3  Cal.  90, 

4-240. 
Ramus  v.  Humphreys    (1901),  65  Pac. 

(Cal.)    875,    21-450. 
Randolph   v.   Halden    (1876),   44   Iowa 

327,  9-29. 
Randolph    Iron   Co.    v.   Elliott    (1870), 

34  N.   J.   L.   184,   3-63. 

Ray  v.  Hodge  (1887),  15  Or.  20,  15- 
371. 

Ray  v.  Western  Pennsylvania  Natural 
Gas  Co.  (1891),  138  Pa.  576,  17- 
374. 

Ray,  Phillips  &  v.  Jones'  Adm'r 
(1854),   20    Mo.    67,    2-522. 

Raymond  v.  Johnson  (1897),  17  Wash. 
232,   19-56. 

Reader  v.  Miller  (1898),  122  Cal.  517, 
19-609. 

Reagan  v.  McKibben  (1898),  11  S.  D. 
270,  19-556. 

Real  Del  Monte  Consol.  Gold  &  Silver- 
Mining  Co.  v.  Pond  Gold  &  Silver- 
Mining  Co.  (1863),  23  Cal.  82, 
7-452. 

Reamer  v.  Nesmith  (1868),  34  Cal.  624, 
5-610. 

Reaves  v.  Ore  Knob  Copper  Co. 
(1876),  74  N.   C.   593.   3-369. 

Rebecca     Gold-Mining     Co.,     Ltd.     v. 

Bryant    (1903),    31   Colo.    119,    22- 

538. 
Reddington  &  Co.  v.  Henry  (18G9),  48 

N.  H.  273,  3-31. 
Redington  v.   Chase    (1862),  44   N.  H. 

36,    2-439. 
Redmayne  v.   Forster    (1866),  L.  R.   2 

Eq.   (Eng.)   467,   10-551. 
Reed  v.   Spicer    (1864),   27  Cal.   57,   4- 

330. 
Rees  v.  Jackson  (1870),  64  Pa.  St.  486, 

5-615. 
Reese   River    Silver-Mining  Co.,    In   re 

(1867),   L.   R.   2   Ch.   App.    (Eng.) 

604,   13-19. 
Reese   River   Silver-Mining  Co.   v.   At- 

well    (1869),   L.   R.    7   Eq.    (Eng.) 

347,    6-626. 


846        Table  of  Cases  for  Morrison's  Mining  Reports. 


Regan  v.   Whittaker    (1901),  14   S.   D. 

373,   21-309. 
Regina   v.   Barrett    (1846),   2   C.   &   K. 

(Eng.)    343,   4-171. 
Regina  v.  Bleasdale   (1848),  2  C.  &  K. 

(Eng.)    765,  4-177. 
Regina   v.    Haines    (1847),   2    C.    &   K. 

(Eng.)     368,    4-174. 

Regina  v.  Hughes    (1857),  1  Dears.  & 

B.  (Eng.)    248,  4-182. 

Regina    v.    James    (1837),    8    C.    &    P. 

(Eng.)    131,  4-168. 
Regina  v.   Lowe    (1850),   4   Cox   C.    C. 

(Eng.)    449,  4-180. 
Reid    v.    Barnhart    (1845),    54    N.    C. 

142,    11-312. 
Reinecke  Coal-Mining  Co.  v.  Wood  (U. 

S.   C.   C.   1901),   112   Fed.   477,   21- 

708. 
Reliance  Coal  &  Coke  Co.  v.  Kentucky 

Coal  &  Coke  Co.   (1893),  93  Tenn. 

191,    17-609. 
Renshaw   v.    Switzer    (1887),    6   Mont. 

464,    15-345. 
Renton  v.  Maryott  (1870),  21  N.  J.  Eq. 

123,    10-564. 
Republican  Min.  Co.  v.  Tyler  Min.  Co. 

(U.    S.    C.    C.    1897),    79    Fed.    733, 

18-564. 

Rex  v.  Batt   (1834),  6  C.  &  P.    (Eng.) 

329,   4-162. 
Rex  v.  Bykerdike   (1832),  1  M.  &  Rob. 

(Eng.)    179,  4-161. 
Rex  v.  Inhabitants  of  Sedgley   (1831), 

2  B.  &  Ad.    (Eng.)    64,   10-390. 

Rex  v.  Webb  &  Moyle  (1835),  1  Moody 

C.  C.    (Eng.)    431,  4-166. 
Reynolds  v.  Hall   (1880),  55  Cal.  164, 

4-116. 
Reynolds    v.    Hosmer    (1873),    45    Cal. 

616,  4-657. 
Reynolds    v.    Hosmer    (1876),    51    Cal. 

205,   5-6. 
Reynolds    v.    Iron    Silver-Mining    Co. 

(1886),  116  U.  S.  687,  15-591. 

Rhea  v.  Tathem   (1854),  54  N.  C.  290, 

11-321. 
Rhea  v.  Vannoy   (1854),  54  N.  C.  282, 

11-315. 
Rhoades  v.  Patrick   (1856),  27  Pa.  St. 

323,    2-62. 
Rhynd    v.    Hyndman    (1880),    54    Md. 

527,  3-166. 
Rice   v.   Boston   &  W.   R.   Corporation 

(1867),  98  Mass.   212,  2-419. 

Rice    v.    Ege    (U.    S.    C.    C.    1890),    42 
Fed.    661,    16-179. 


Rice  v.  Rigley  (1900),  7  Idaho  115, 
20-553. 

Rice's  Appeal    (1875),   79   Pa.    168,    3- 

638. 
Rich   v.    Davis    &    Co.    (1856),    6    Cal. 

164,    11-326. 
Rich    v.    Johnson     (14     Geo.     II.),     2 

Strange   (Eng.)   1142,  1-173. 

Richards  v.  Harvey  (1841),  1  Q.  B. 
(Eng.)    845,    11-273. 

Richards  v.  Schlegelmich  (1871),  65 
N.  C.  150,  3-78. 

Richardson  v.  Kier  (1867),  34  Cal. 
63,    4-612. 

Richardson  v.  McNulty  (1864),  24  Cal. 
339,  1-11. 

Richmond    Min.    Co.    v.    Eureka    Min. 

Co.    (1880),  103  U.   S.   839,   9-634. 
Ricketts    v.    Bennett    (1847),    4    C.    B. 

(Eng.)    686,    11-278. 
Riddle  v.   Brown    (1852),  20  Ala.   412, 

9-219. 
Ridgway  v.  Sneyd   (1854),  1  Kay  &  J. 

(Eng.)    627,    8-414. 

Rigney   v.    Small    (1871),   60   111.    416, 

8-217. 
Risch  v.  Wiseman   (1900),  36  Or.  484, 

20-409. 
Risto   v.   Harris    (1864),   18   Wis.   400, 

15-53. 
Rivers  v.  Burbank  (1878),  13  Nev.  398, 

7-583. 
Roach  v.  Gray   (1860),  16  Cal.  383,  4- 

450. 
Roberts  v.  Bettman   (1898),  45  W.  Va. 

143,    19-326. 
Roberts     v.     Dauphin     Deposit     Bank 

(1852),  19  Pa.  St.  71,  6-54. 
Roberts   v.    Eberhardt    (1853),    1    Kay 

(Eng.)    148,   11-301. 
Roberts  v.  Rose   (1865),  L.  R.  1  Exch. 

(Eng.)    82,    14-441. 
Roberts  v.  Wilson   (1876),  1  Utah  292, 

4-498. 
Roberts'   &   Pyne's   Appeal    (1869),   60 

Pa.   St.   400,    10-560. 
Robertson  v.  Jones   (1874),  71  111.  40F, 

10-190. 
Robertson    v.    Smith    (1871),    1    Mont. 

410,    7-196. 
Robinson   v.   Black   Diamond   Coal  Co. 

(1875),  50  Cal.  460,   14-93. 

Robinson  v.  Imperial  Silver-Mining 
Co.   (1869),  5  Nev.  44,  10-370. 

Robinson,  People  ex  rel.  v.  Pittsburg 
R.  Co.  (1879),  53  Cal.  694,  12- 
519. 


Table  of  Cases  for  Morrison's  Mining  Eeports.        847 


Robinson    v.    Smith    (1832),    3    Paige 

(N.  Y.)    222,  3-443. 
Rochester    &    O.    Oil    Co.    v.    Hughey 

(1867),   56  Pa.   St.   322,  4-282. 
Rockwell    v.    Graham    (1885),    9    Colo. 

36,   15-299. 
Rodgers    v.    Love    (1841),    2    Humph. 

(Tenn.)  417,  2-474. 
Rogers  v.  Cooney    (1872),  7  Nev.   213, 

14-85. 
Rogers  v.  R.   E.   Lee  Min.   Co.    (U.    S. 

C.  C.  1881),  9  Fed.  721,  2-71. 
Rogers   v.    Soggs    (1863),   22   Cal.    444, 

14-375. 
Rokeby,  Lord  v.   Elliot    (1872),   L.   R. 

12  Ch.  D.   (Eng.)    277,  8-651. 

Rolleston  v.  New    (1858),  4  Kay  &  J. 

(Eng.)    640,  8-464. 
Roosevelt  v.  Dale    (1823),  2  Cow.    (N. 

Y.)    129,    6-377. 
Rose  Clare  Lead  Co.  v.  Madden  (1870), 

54  111.  260,  3-42. 
Rosenthal  v.  Ives   (1887),  2  Idaho  265, 

2  Idaho  (West  Ed.)  244,  15-324. 

Roseville  Alta  Min.  Co.  v.  Iowa  Gulch 
Min.   Co.    (1890),  15   Colo.   29,    16- 

93. 
Ross  v.  Heathcock  (1881),  52  Wis.  557, 

3-404. 
Ross  v.  Heintzen    (1868),  36  Cal.  313, 

12-483. 
Rosse,    Earl    of    v.    Wainman    (1845), 

14  M.  &  W.   (Eng.)    859,   10-398. 
Rough  v.  Simmons  (1884),  65  Cal.  227, 

15-298. 
Rousseau  v.  Hall   (1880),  55  Cal.  164, 

4-116. 
Rowe  v.   Bacigalluppi    (1863),   21  Cal. 

633,    5-237. 
Rowe  v.   Bradley    (1859),  12   Cal.   226, 

14-431. 
Rowe    v.    Grenfel    (1826),     R.     &     M. 

(Eng.)    396,    13-234. 
Rowlands  v.  Evans   (1861-62),  31  L.  J. 

Ch.     (Eng.)     265,    9-644. 

Roxanna  Gold-Mining  &  Tunneling  Co. 

v.  Cone  (U.  S.  C.  C.  1899),  100  Fed. 

168,    20-323. 
Royston  v.  Miller   (U.   S.  C.  C.  1896), 

76  Fed.  50,   18-418. 

Rubie  Combination  Gold-Mining  Co. 
v  Princess  Alice  Gold-Mining  Co. 
(1903),   31   Colo.    158,   22-569. 

Rule   v.    Jewell    (1880),   L.   R.    18   Ch. 

D.    (Eng.)    660,   8-291. 
Rupley  v.  Welch    (1863),  23  Cal.  452, 

4-243. 


Russell  v.  Chumasero   (1882),  4  Mont. 

309,    15-508. 
Russell  v.   Ford    (1852),  2   Cal.   86,   1- 

75. 
Rutland  Marble  Co.  v.  Ripley    (1870), 

10   Wall.    (U.    S.)    339,   3-291. 
Ry lands    v.    Fletcher    (1868),   L.    R.    3 

H.  L.    (Eng.)    330,  6-129. 
Rynd   v.   Rynd   Farm   Oil   Co.    (1869), 

63    Pa.    St.    397,    5-275. 

S. 

St.  Clair  v.  Cash  Gold-Mining  &  Mill- 
ing Co.  (1896),  9  Colo.  App.  235, 
18-523. 

St.  Helen's  Smelting  Co.  v.  Tipping 
(1865),  11  H.  L.  Cas.  (Eng.)  642, 
11-50. 

St.  John  v.  Kidd  (1864),  26  Cal.  264, 
4-454. 

St.  Louis  &  D.  Land  &  Mining  Co.  v. 
Tierney  (1881),  5  Colo.  582,  2-381. 

St.  Louis  Mining  &  Milling  Co.  v.  Mon- 
tana Co.,  Ltd.  (1890),  9  Mont.  288, 
17-283. 

St.  Louis  Mining  &  Milling  Co.  of 
Montana  v.  Montana  Min.  Co.,  Ltd. 
(1893),  58  Fed.  129,   17-658. 

St.    Louis    Mining    &    Milling    Co.    v. 

Montana  Min.   Co.    (1898),   171  U. 

S.    650,    19-575. 
St.    Louis    Mining    &    Milling    Co.    of 

Montana  v.  Montana  Min.  Co.  Ltd. 

(U.   S.  C.  C.   1900),   104   Fed.  664, 

21-57. 
St.    Louis    Mining    &    Milling    Co.    of 

Montana  v.  Montana  Min.  Co.,  Ltd. 

(U.   S.   C.   C.  1902),  113   Fed.   900, 

22-127. 
St.  Louis  Smelting  &  Refining  Co.  v. 

Kemp    (1881),   104   U.    S.    636,    11- 

673. 
St     Mary's    Gas     Co.    v.    Elk     County 

(1899),    191    Pa.    458,    20-76. 
Sampson     Mining     &    Milling    Co.     v. 

Schaad    (1890),   15   Colo.   197,    17- 

362. 
San  Buenaventura  Commercial  Min.  & 

Mfg.    Co.    v.    Vassault    (1875),    50 

Cal.   534,    13-550. 
Sanders  v.  Moble  (1899),  22  Mont.  110, 

19-650. 
Sanderson    v.    Pennsylvania    Coal    Co. 
(1878),  86  Pa.   St.  401,   11-60. 

San  Felipe  Min.  Co.  v.  Belshaw  (1875), 

49   Cal.   655,   5-315. 
Santa    Clara   Min.    Ass'n    v.    Meredith 

(1878),  49  Md.  389,  4-44. 


848        Table  of  Cases  for  Morrison's  Mining  Eeports. 


Sargent    v.    Linden    MIn.    Co.    (1880), 

55  Cal.   204,   3-207. 
Saterfield    v.    Randall    (1882),   44    Ga. 

576,    1-129. 
Saunders  v.  La  Purisima  Gold-Mining 

Co.    (1899),    125    Cal.    159,    20-93. 
Saunders'    Case     (41    Eliz.),    3    Coke 

(Eng.)    12,    15-109. 
Savage  v.    Ball    (1864),   17  N.   J.   Eq. 

142,    2-579. 
Sawyer  v.   Turner    (U.   S.   C.   C.   Colo. 

1888),    16-260. 
Sayer  v.  Pierce   (1749),  1  Ves.   (Eng.) 

232,    1-72. 
Schaefer    v.    Bidwell    (1874),    9    Nev. 

209,    1-409. 
Scheel   v.   Alhambra   Min.    Co.    (U.    S. 

C.   C.   1897),  79   Fed.   821,   18-616. 
Schissler  v.   Chesshire    (1872),  7  Nev. 

427,    5-309. 

Schultz  v.  Allyn  (1897),  5  Ariz.  152, 
18-649. 

Schultz  v.  Keeler  (1889),  2  Idaho  531, 
17-198. 

Schuylkill  &  D.  Improvement  &  Rail- 
road Co.  v.  Schmoele  (1868),  57 
Pa.    St.    271,    7-480. 

Schwab  v.  Bean  (U.  S.  C.  C.  1898), 
86   Fed.    41,    19-279. 

Scorpion  Silver-Mining  Co.  v.  Marsano 
(1875),    10    Nev.    370,    12-502. 

Scott  v.  Baker  (1869),  3  W.  Va.  285, 
2-145. 

Scott  v.  Clark  (1853),  1  Ohio  St.  382, 
12-276. 

Scott  v.  Crouch  (1902),  24  Utah  377, 
22-117. 

Scott   v.   Kittanning   Coal   Co.    (1879), 

89   Pa.   St.   231,   3-159. 
Scott's  Appeal   (1877),  85  Pa.   St.  463, 

9-42. 

Scranton  v.  Phillips  (1880),  94  Pa.  St. 

15,    14-48. 
Seaman    v.  Vawdrey   (1810),  16    Ves. 

Jr.    (Eng.)    390,    13-62. 
Searight  v.  Payne  (1874),  2  Tenn.  Ch. 

175,    13-401. 
Searle    v.    Lackawanna    &    B.    R.    Co. 

(1859),   33   Pa.    St.   57,   5-353. 
Sears  v.   Collins    (1881),   5   Colo.   492, 

12-400. 

Sears  v.  Taylor  (1877),  4  Colo.  38, 
5-318. 

Sedgwick  v.  Daniell  (1857),  2  H.  &  N. 
(Eng.)    319,    11-337. 

Sellers  v.  Phoenix  Iron  Co.  (1881), 
13  Fed.  20,  15-388. 


Senhouse  v.  Harris   (1862),  5  L.  T.  N. 

S.    (Eng.)    635,    8-507. 
Senior    v.    Ward     (1859),    1    E.    &    E. 

(Eng.)    385,    10-646. 
Settembre  v.   Putnam    (1866),   30   Cal. 

490,   11-425. 

Seymour  v.  Wood   (1878),  53  Cal.  303, 
1-62. 

Shafer    v.    Constans    (1879),    3    Mont. 

369,  1-147. 
Shaffer  v.   Union  Min.   Co.    (1880),  55" 

Md.  74,  15-59. 
Shafto  v.   Johnson    (1863),   8   B.   &   S. 

(Eng.)    252,    15-262. 
Sharp  v.  Dawes  (1876),  L.  R.  2  Q.  B.  D. 

(Eng.)   26,  13-576. 
Sharp    v.    Wright     (1859),    28    Beav. 

(Eng.)   150,  8-202. 
Sharpe  v.  Arnott   (1875),  51  Cal.  188, 

10-580. 
Shattuck  v.  Costello  (1902),  8  Ariz.  22, 

22-136. 
Shaver   v.   Bear  River  &  A.   Water  & 

Mining    Co.    (1858),    10    Cal.    396, 

2-537. 
Shaver  v.  Ocean  Min.  Co.    (1862),  21 

Cal.  46,  2-130. 
Shaw   v.    Stenton    (1858),   2   H.    &   N. 

(Eng.)    858,   8-488. 
Shaw  v.   Wallace    (1856),  25  N.  J.  L. 

455,    14-420. 
Shay  v.   Tuolumne   County  Water  Co. 

(1856),  6  Cal.  73,  5-587. 

Sheets  v.  Allen   (1879),  89  Pa.  St.  47, 

11-16. 
Sheldon  v.   Davey    (1870),  42  Vt.   637, 

8-581. 
Shellar  v.  Shivers  (1895),  171  Pa.  569, 

18-260. 

Shepler    v.    Scott    (1877),    85    Pa.    St. 

329,   2-674. 
Sheriff    v.    Globe    Oil    Co.     (1868),    7 

Phila.   (Pa.  C.  P.)   4,  13-475. 

Sherman  v.  Clark   (1868),  4  Nev.  138, 

7-483. 
Sherwood  v.   Meadow  Valley  Min.  Co. 

(1875),  50  Cal.  412,  13-547. 

Shoenberger   v.   Baker    (1853),   22   Pa. 

St.  398,  14-412. 
Shoenberger  v.  Lyon    (1844),  7  Watts 

&  S.    (Pa.)    184,   13-88. 
Sholl    v.    People    (1879),    93    111.    129, 

4-228. 
Short  v.   Stevenson   (1869),  63  Pa.  St. 

95,  6-629. 
Shoshone  Min.  Co.  v.  Rutter  (U.  S.  C. 

C.  1898),  87  Fed.  801,  19-356. 


Table  of  Cases  foe  Morrison's  Mining  Keports.        849 


Sierra    Nevada    Silver-Mining    Co.    v. 

Sears   (1875),  10  Nev.  346,   7-549. 
Silsby  v.  Trotter   (1878),  29  N.  J.  Eq. 

228,  3-137. 
Silver  City   Gold   &   Silver-Mining  Co. 

v.  Lowry  (1899),  19  Utah  334,  20- 

55. 
Silver   Cord   Combination   Min.   Co.   v. 

McDonald     (1890),     14    Colo.    191, 

16-171. 
Silver  Min.  Co.  v.  Fall  (1870),  6  Nev. 

116,  5-283. 
Silver  Peak  Mines  v.  Hanchett   (U.  S. 

C.  C.  1899),  93  Fed.  76,  20-19. 

Silver  Valley  Min.  Co.  v.  North  Caro- 
lina Smelting  Co.  (1898),  122  N. 
C.    542,    19-339. 

Simons  v.  Vulcan  Oil  &  Mining  Co. 
(1869),  61  Pa.  St.  202,  6-633. 

Simpkins   v.    Smith   &   Parmelee   Gold 

Co.    (1875),   50   How.    Pr.    (N.   Y.) 

56,   12-589. 
Sims  v.  Smith    (1857),  7  Cal.  148,  13- 

161. 
Sisson    v.    Sommers    (1899),    24    Nev. 

379,    19-644. 
Skidmore    v.    Eikenberry     (1880),    53 

Iowa  621,    15-360. 
Skillman  v.   Lachman    (1863),   23   Cal. 

198,  11-381. 
Skyrme   v.    Occidental   Mill    &   Mining 

Co.   (1873),  8  Nev.  219,  9-370. 
Slade  v.   Sullivan    (1860),  17  Cal.  102, 

7-419. 
Slater   v.   Haas    (1890),   15   Colo.    574, 

16-201. 

Slavonian  Min.  Co.  v.  Perasich   (U.  S. 

C.  C.  1881),  7  Fed.  331,   1-541. 
Slemmer's   Appeal    (1868),    58    Pa.    St. 

168,  11-437. 
Sloan  v.  Lawrence  Furnace  Co.  (1876), 

29  Ohio  St.  568,  5-659. 
Small  v.  Franklin  Min.  Co.   (1868),  99 

Mass.   277,  2-33. 
Smallhouse  v.  Kentucky  &  M.  Gold  & 

Silver-Mining  Co.    (1876),  2  Mont. 

443,    9-388. 
Smart   v.    Morton    (1855),    5    E.    &    B 

(Eng.)   30,  13-655. 

Smith,  In  re  (1874),  L.  R.  10  Ch.  App. 
(Eng.)    79,   9-650. 

Smith   v.    Bellows    (1875),   77   Pa.    St. 

441,    12-157. 
Smith  v.  Bolles   (1889),  132  U.  S.  125, 

16-159. 
Smith  v.  City  Council  of  Rome  (1855), 

19   Ga.   89,   7-306. 

W.  &  M.— 54 


Smith  v.  Darby   (1872),  L.  R.  7  Q.  B. 

(Eng.)    716,   13-695. 
Smith   v.   Doe    (1860),   15   Cal.   101,   5- 

218. 

Smith   v.   Fagan    (1860),   17   Cal.   178, 

1-87. 
Smith    v.    Fletcher     (1874),    L.    R.    9 

Exch.   (Eng.)   64,  6-192. 
Smith  v.  Hawkins  (1898),  120  Cal.  86, 

19-243. 
Smith    v.    Kenrick     (1849),    7    C.    B. 

(Eng.)    515,   6-142. 
Smith     v.     Maine     Boys'     Tunnel    Co. 

(1861),  18  Cal.  Ill,  13-460. 
Smith  v.  Morris   (1788),  2  Brown's  C. 

C.    (Eng.)    311,   8-317. 
Smith    v.    North    American    Min.    Co. 

(1865),   1   Nev.    423,    13-599. 

Smith  v.  O'Hara  (1872),  43  Cal.  371, 
1-671. 

Smith   v.   Oxford  Iron  Co.    (1880),   42 

N.   J.   L.  467,   2-208. 
Smith  v.  Reese  River  Co.  (1866),  L.  R. 

2   Eq.    (Eng.)    264,   12-415. 
Smith  v.  Reynolds   (U.  S.  C.  C.  1880), 

8  Fed.  696,  2-227. 
Smith   v.    Richardson    (1877),    2    Utah 

424,   1-139. 
Smith,  Lonkey  &  v.  Succor  Mill  &  Min- 
ing Co.   (1874),  10  Nev.  17,  1-411. 
Smith    v.    "Wilmington    Coal-Mining    & 

Manufacturing  Co.    (1876),  83   111. 

498,  5-679. 
Smith's    Case,    Griswold    &    (1859),    4 

De  G.  &  J.  (Eng.)  544,  2-36. 
Sneathen  v.  Grubbs  (1878),  88  Pa.  St. 

147,  4-286. 
Snodgrass    v.     South     Penn     Oil    Co. 

(1900),  47  W.  Va.  509,  20-428. 

Snodgrass    v.    Ward    (1816),    3    Hayw. 

(Tenn.)    40,  4-306. 
Snow    v.    Nelson    (U.    S.    C.    C.    1902), 

113  Fed.   353,  22-32. 

Snow  v.  Thompson  Oil  Co.    (1868),  59 

Pa.   St.   209,   3-15. 
Snyder    v.    Burnham    (1882),    77    Mo. 

52,   15-562. 
Sobey  v.  Thomas   (1876),  39  Wis.  317, 

4-359. 
Southern   Cross   Gold   &   Silver-Mining 

Co.  v.  Europa  Min.  Co.   (1880),  15 

Nev.  383,  9-513. 
Southern    Development    Co.    v.    Silva 

(1888),  125  U.  S.  247,   15-435. 

South  Mountain  Consol.  Min.  Co.,  In 
re  (U.  S.  C.  C.  1881),  7  Sawy.  31, 
13-615. 


850 


Table  of  Cases  for  Morrison's  Mining  Reports. 


South  Penn  Oil  Co.  v.   Edgell   (1900), 

48  W.   Va.  348,  21-106. 
South    Penn    Oil    Co.    v.    Latshaw    (U. 

S.   C.   C.   1901),   111  Fed.    598,   21- 

600. 

South  of  Ireland  Colliery  Co.  v.  Wad- 
dle (1869),  L.  R.  4  C.  P.  (Eng.) 
617,  3-533. 

Sowden    v.    Idaho    Quartz-Mining    Co. 

(1880),  55  Cal.  443,  2-199. 
Sparrow  v.  Strong  (1865),  3  Wall.   (U. 

S.)    97,  2-320. 
Spencer    v.    Kunkle     (1853),    2    Grant 

(Pa.)    406,   2-18. 
Spencer     v.     Scurr     (1862),    31    Beav. 

(Eng.)    334,    10-388. 

Spencer  &  Pratt  v.  Winselman  &  Clow 
(1871),  42  Cal.  479,  2-334. 

Stage  v.  Boyer  (1898),  183  Pa.  560, 
19-210. 

Stahl  v.  Van  Vleck  (1895),  53  Ohio  St. 

136,    18-231. 
Stambaugh   v.    Smith    (1873),   23   Ohio 

St.  584,   15-82. 
Stanley    v.    Little    Pittsburg    Min.    Co. 

(1882),  6  Colo.  415,  14-214. 

Stapleton  v.  Pease  (1877),  2  Mont.  550, 
9-574. 

State  v.  Berryman  (1873),  8  Nev.  262, 
4-199. 

State  v.  Burt  (1870),  64  N.  C.  619,  4- 
190. 

State  v.  Dickerson   (1856),  25  N.  J.  L. 

427,    14-103. 
State     v.     Eureka     Consol.     Min.     Co. 

(1872),   8  Nev.   15,    14-165. 
State    v.    Kruttschnitt    (1868),    4   Nev. 

178,    14-130. 

State   v.   Manhattan   Silver-Mining  Co. 

(1868),  4  Nev.  318,  14-149. 
State  v.  Moore   (1859),  12  Cal.  56,  14- 

110. 

State  v.  Moore  (1901),  27  Ind.  App.  83, 
21-401. 

State  v.  Northern  Belle  Mine  &  Mining 
Co.   (1880),  15  Nev.  385,  14-211. 

State  v.  Real  Del  Monte  Gold  &  Silver- 
Mining  Co.  (1865),  1  Nev.  523,  4- 
334. 

State   ex   rel.   Corey   v.   Curtis    (1874), 

9  Nev.   325,   3-630. 
State     ex     rel.     Elliott     v.     Guerrero 

(1877),  12  Nev.  105,  9-660. 

State  ex  rel.  Flagg  v.  Lady  Bryan 
Min.  Co.  (1868),  4  Nev.  400,  3-526. 

State  ex  rel.  Geyman  v.  District  Court 
(1902),   26   Mont.   433,   22-211. 


State  ex  rel.  Guerrero  v.  Pettineli 
(1875),  10  Nev.  141,   12-513. 

State  ex  rel.  Heinze  v.  District  Court 
(1902),  26  Mont.  416,  22-195. 

Steel  v.  Gold  Lead  &  Silver-Mining 
Co.    (1883),  18  Nev.   80,    15-292. 

Steel  v.  Solid  Gold  &  Silver-Mining 
Co.   (1878),  13  Nev.  486,  3-155. 

Steele  v.  Dunne  (1872),  65  111.  298, 
12-39. 

Steelsmith  v.  Gartlan  (1898),  45  W. 
Va.  27,  19-315. 

Steiner  v.  Marks  (1896),  172  Pa.  400, 
18-320. 

Stenger  v.  Edwards  (1873),  70  111. 
631,   9-368. 

Stephens  v.  Wood  (1901),  39  Or.  441, 
21-443. 

Stephenson  v.  Wilson   (1875),  37  Wis. 

482,  13-408. 
Stevens    v.    Gill    (U.    S.    C.    C.    1879), 

Fed.  Cas.    No.  13,398,  1-576. 
Stevens    v.     Guppy     (1826),     3     Russ. 

(Eng.)  171,  13-315. 
Stevens  v.  Williams  (U.  S.  C.  C.  1879), 

Fed.  Cas.    No.   13,414,    1-557. 
Stevens  v.  Williams  (U.  S.  C.  C.  1879), 

Fed.    Cas.    No.    13,413,    1    McCrary 

480,   1-566. 
Stevens  v.  Williams  (U.  S.  C.  C.  1879), 

Fed.    Cas.     No.    13,413,    1    McCrary 

480,   5-449. 

Stevens  &  Leiter  v.  Murphy  (U.  S.  C. 
C.  1879),  Fed.  Cas.  No.  8,158,  4- 
380. 

Steves   v.   Carson    (U.    S.   C.   C.    1890), 

42  Fed.  821,   16-12. 
Stewart   v.    Chadwick    (1859),    8    Iowa 

463,    13-236. 
Stewart  v.   Mahoney  Min.   Co.    (1880), 

54   Cal.   149,  4-106. 

Stewart  v.  Munford  (1878),  91  111.  58, 
5-555. 

Stewart's  Appeal  (1875),  78  Pa.  St.  88, 
12-491. 

Stiles  v.  Laird  (1855),  5  Cal.  120,  11- 
21. 

Stinchfield  v.  Gillis  (1892),  96  Cal.  33, 
17-497. 

Stinchfield  v.  Gillis  (1895),  107  Cal.  84, 
18-195. 

Stith  v.  Lookabill  (1877),  76  Cal.  465, 
14-588. 

Stoakes  v.  Monroe  (1868),  36  Cal.  383, 
2-246. 

Stockbridge  Iron  Co.  v.  Cone  Iron 
Works  (1869),  102  Mass.  80,  6- 
317. 


Table  of  Cases  for  Morrison's  Mining  Reports.        851 


Stockbridge   Iron   Co.   v.   Hudson    Iron 

Co.  (1871),  107  Mass.  290,  13-120. 

Stone  v.  Bumpus    (1870),  40  Cal.  428, 

4-271. 
Stone  v.  Bumpus    (1873),  46  Cal.   218, 

4-278. 
Stone   v.    Cartwright    (1795),    6    T.   R. 

(Eng.)    411,  9-672. 
Stone  v.  Geyser  Quicksilver-Mining  Co. 

(1877),   52   Cal.   315,    1-59. 
Stone  v.  Marshall  Oil  Co.    (1898),  188 

Pa.  602,  19-593. 
Stone   v.    Marye    (1879),   14    Nev.    362, 

13-593. 
Stonecifer    v.     Yellow     Jacket     Silver- 
Mining  Co.   (1867),  3  Nev.  38,  3-4. 
Stoughton  v.   Leigh    (1808),  1    Taunt. 

(Eng.)   402,  5-47. 
Strahlendorf   v.    Rosenthal    (1872),    30 

Wis.  674,  10-676. 
Strang    v.    Ryan    (1873),    46    Cal.    33, 

1-48. 
Stratton  v.  Lyons    (1881),   53  Vt.  641, 

10-314. 
Streeter  v.  Marshall  Silver-Mining  Co. 

(1879),  4  Colo.  535,   7-660. 
Strelley   v.    Pearson    (1880).   L.   R.    15 

Ch.  D.  (Eng.)  113,  7-618. 
Strepey  v.   Stark   (1884),  7   Colo.   614, 

17-28. 
Strettell  v.  Ballou   (U.   S.  C.  C.  1881), 

3   McCrary   46,    11-220. 
Strickley  v.  Hill   (1900),  22  Utah  257, 

20-722. 
Strobel   v.    Kerr    Salt   Co.    (1900),    164 

N.  Y.  303,  21-38. 
Strong  v.  Lyon    (1875),   63  N.  Y.   172, 

13-554. 
Strout  v    Natoma  Water  &  Mining  Co. 

(1858),   9   Cal.   78,    10-330. 
Stuart,     Buchanan     &     Co.     v.     White 
(1874),    25    Gratt.     (Va.)     300,    5- 
454. 
Suffern    v.    Butler     (1869),    21    N.    J. 

Eq.  410,  3-22. 
Sullivan  v.  Hense   (1874),  2  Colo.  424, 

9-487. 
Sun    Dance    Gold-Mining    Co.    v.    Frost 

(1901),   7   Ariz.   289,   21-252. 
Sunday    Lake    Min.    Co.    v.    Wakefield 

(1888),  72  Wis.   204,    16-97. 
Susquehanna    &    W.    Val.    Railroad    & 
Coal  Co.  v.   Quick    (1869),   61  Pa. 
St.  328,  1-201. 
Swivel,  Upton  &  v.  Brazier   (1864),  17 

Iowa  153,  9-243. 
Synnott  v.    Shaughnessy     (1889),    130 
U.  S.   572,   17-213. 


T. 

Tabbart,   Ex   parte    (1801),  6   Ves.   Jr. 

(Eng.)    428,  9-643. 
Table  Mountain  Tunnel  Co.  v.  Strana- 

han   (1862),  20  Cal.  198,  9-457. 
Table  Mountain  Tunnel  Co.  v.  Strana- 

han  (1863),  21  Cal.  548,  9-465. 
Tabor  v.  Dexter   (U.  S.  C.  C.  1878-79), 

Fed.  Cas.    No.  13,723,  9-614. 
Talbot  v.  Ford  (1842),  13  Sim.   (Eng.) 

173,  8-347. 
Talmadge  v.  St.  John   (1900),  129  Cal. 

430,  21-13. 
Tartar  v.  Spring  Creek  Water  &  Min- 
ing Co.  (1855),  5  Cal.  395,  14-371. 
Tatham    v.    Lewis    (1870),    65    Pa.    St. 

65,   6-670. 
Taylor   v.   Castle    (1871),  42   Cal.   367, 

11-484. 
Taylor  v.  Holter   (1872),  1  Mont.  68S, 

3-322. 
Taylor    v.    Middleton    (1885),    67    Cal. 

656,    15-284. 
Taylor    v.    New    England    Coal-Mining 
Co.    (1862),   4   Allen    (Mass.)    577, 
12-107. 
Taylor  v.  Parenteau    (1897),  23   Colo. 

368,    18-534. 
Taylor  v.  Thomas  (1903),  31  Colo.  15, 

22-527. 
Tecumseh    Iron    Co.    v.    Carrie    Camp 

(1891),  93  Ala.   572,   17-388. 
Teller,    Lyell    &    v.    Sanbourn    (1851), 

2  Mich.  109,  1-313. 
Temescal    Oil-Mining    &    Development 
Co.  v.  Salcido  (1902),  137  Cal.  211, 
22-360. 
Tempest  v.   Ord    (1815),  1  Madd.   Ch. 

(Eng.)    59,   2-117. 
Tenney   v.    Miners'    Ditch   Co.    (1857), 

7  Cal.  335,  11-31. 
Territory  v.  Lee    (1874),  2  Mont.  124, 

6-248. 
Thallmann    v.    Thomas    (U.    S.    C.    C. 

1901),   111   Fed.   277,   21-573. 
Thomas  v.   Chisholm    (1889),  13   Colo. 

105,    16-122. 
Thomas    v.    Oakley     (1811),    18    Ves. 

(Eng.)   184,  7-254. 
Thomas  Iron  Co.  v.  Allentown  Min.  Co. 

(1877),   28   N.   J.   Eq.   77,   8-36. 
Thompson   v.   Jewell    (1880),  43  Mich. 

240,  12-59. 
Thompson   v.   Lee    (1857),   8   Cal.   276, 

1-610. 
Thompson   v.   Noble    (1870),    3    Pittsb. 
(Pa.)    201,   11-137. 


852        Table  of  Cases  for  Morrison's  Mining  Eeports. 


Thompson  v.  Prouty  (1854),  27  Vt.  14, 

12-290. 
Thompson   v.    Toland    (1874),   48   Cal. 

99,  2-77. 
Thorn  v.  Sweeney  (1877),  12  Nev.  251, 

7-564. 
Thornburgh  v.  Savage  Min.  Co.   (U.  S. 

C.  C.  1867),  Fed.  Cas.    No.  13,986, 

7-667. 
Thorneycroft    v.    Crockett    (1848),    16 

Sim.    (Eng.)    445,    10-529. 
Thorp    v.    Woolman     (1870),    1    Mont. 

168,  8-87. 
Tibbetts  v.  Moore  (1863),  23  Cal.  208, 

9-348. 
Tiffin,    City   of   v.    McCormick    (1878), 

34  Ohio  St.  638,  2-194. 
Tiley  v.  Moyers  (1855),  25  Pa.  St.  397, 

15-259. 
Tiley  v.  Moyers  (1862),  43  Pa.  St.  404, 

4-320. 
Tipping    v.    St.    Helen's    Smelting   Co., 

Ltd.   (1863),  4  B.  &  S.   (Eng.)   608, 

11-43. 
Tipping    v.    St.    Helen's    Smelting    Co. 

(1863),    4    B.    &    S.     (Eng.)     616, 

11-49. 
Tipping    v.    St.    Helen's    Smelting   Co. 

(1865),   L.   R.   1   Ch.   App.    (Eng.) 

66,   11-57. 
Tipton    Green    Colliery    Co.    v.    Tipton 

Moat  Colliery  Co.    (1877),  L.  R.  7 

Ch.  D.    (Eng.)    192,    10-591. 
Titcomb  v.  Kirk    (1876),   51   Cal.   288, 

5-10. 
Titusville  Novelty  Iron  Works'  Appeal 

(1874),  77  Pa.  St.  103,  9-17. 
Todd    v.    Cochell    (1860),    17    Cal.    97, 

10-655. 
Toombs  v.   Consolidated   Poe  Min.   Co. 

(1880),    15   Nev.    444,    3-210. 

Toombs      v.      Hornbuckle      (1878),      3 

Mont.  193,   13-430. 
Town  of  Gold  Hill  v.  Caledonia  Silver- 
Mining   Co.    (U.   S.   C.   C.   1879),   5 

Sawy.  575,   14-202. 
Townsend   v.   Peasley    (1874),   35  Vv^is. 

383,    2-612. 
Trafton  v.  Nougues  (U.  S.  C.  C.  1877), 

4   Sawy.   178,   8-138. 
Trayes  v.  Johns   (1898),  11  Colo.  App. 

219,    19-304. 
Treasurer   v.    Commercial   Coal-Mining 

Co.   (1863),  23  Cal.  390,   13-360. 

Treat's  Appeal   (1874),  77  Pa.  St.  221, 
11-142. 

Tredwen  v.  Bourne  (1840),  6  M.  &  W. 
(Eng.)   461,  11-268. 


Trees  v.  Eclipse  Oil  Co.   (1899),  47  W. 

Va.    107,    20-260. 
Trevaskis    v.    Peard    (1896),    111    Cal. 

599,  18-353. 
Trihay    v.  Brooklyn    Lead-Mining    Co. 

(1886),   4   Utah   468,    15-535. 
Trotter    v.    Maclean    (1878),   L.    R.    13 

Ch.  D.   (Eng.)   574,  10-263. 
Trout  v.  McDonald    (1876),  83  Pa.   St. 

144,  9-32. 

Trowbridge     v.     Scudder      (1853),     11 

Cush.    (Mass.)    83,    3-471. 
Troxell     v.     Lehigh     Crane     Iron     Co. 

(1862),   42   Pa.    St.    513,    5-517. 
Trustees     of     Hawesville     v.     Hawes' 

Heirs    (1869),   6   Bush    (Ky.)    232, 

7-193. 
Tuck   v.    Downing    (1875),    76    111.    71, 

7-83. 
Tufts    v.    Plymouth    Gold-Mining    Co. 

(1867),   14  Allen    (Mass.)    407,    1- 

371. 
Tumlin,  Curtain  &  v.  Munford   &  Gil- 

reath    (1874),  53  Ga.  168,    12-585. 
Tuolumne    Consol.    Min.    Co.    v.    Maier 

(1901),    134   Cal.    583,    21-678. 
Tuolumne  County  Water  Co.  v.  Colum- 
bia   &    S.    Water    Co.     (1858),    10 

Cal.   193,    10-634. 
Tuolumne     Water     Co.     v.     Chapman 

(1857),   8   Cal.    392,    11-34. 
Turner  v.  Reynolds   (1854),  23  Pa.  St. 

199,    12-190. 
Turner    v.    Sawyer    (1893),    150    U.    S. 

578,  17-683. 
Turner  v.  Tuolumne  County  Water  Co. 

(1864),  25  Cal.  397,   1-107. 
Twaddell's    Appeal    (1846),    5    Pa.    St. 

15,  7-189. 
Twin-Lick  Oil  Co.  v.  Marbury   (1875), 

91  U.   S.   587,   3-688. 

Tyler    Min.    Co.    v.  Last   Chance  Min. 

Co.    (U.    S.    C.  C.    1895),    71  Fed. 

848,    18-303. 

Tyler   Min.    Co.    v.  Last   Chance  Min. 

Co.    (U.    S.    C.  C.    1898),    90  Fed. 

15,    19-525. 


U. 


Uhl    v.   Ohio  River  R.   Co.    (1899),  47 

W.  Va.  59,  20-263. 
Uinta   Tunnel   Min.    &    Transp.    Co.   v. 

Creede   &  C.  C.   Mining  &  Milling 

Co.    (U.    S.    C.    C.   1902),   119    Fed. 

164,    22-445. 

Ulmer   v.    Farnsworth    (1888),    80    Me. 
500,    17-134. 


Table  of  Cases  for  Morrison's  Mining  Keports.        853 


Union     Consol.     Silver-Mining     Co.     v. 

Taylor    (1879),    100    U.    S.    37,    5- 

323. 
Union    Gold-Mining    Co.    v.    Crawford 

(1902),  29  Colo.  511,  22-213. 
Union  Gold-Mining  Co.  v.  Rocky  Moun- 
tain  Nat.    Bank    (1877),   96   U.    S. 

640,    1-432. 
Union  Iron  Co.  v.  Pierce   (U.  S.  C.  C. 

1869),  4  Biss.    (U.  S.)    327,   12-19. 
Union   Mill   &  Mining  Co.   v.   Danberg 

(U.   S.   C.   C.   1873),   2    Sawy.   450, 

8-113. 
Union    Mill    &    Mining    Co.    v.    Ferris 

(U.    S.   C.   C.   1872),   2    Sawy.    176, 

8-90. 
Union  Petroleum  Co.  v.  Bliven  Petrol- 
eum   Co.    (1872),    72    Pa.    St.    173, 

3-107. 
Union    Water    Co.    v.    Murphy's    Flat 

Fluming  Co.    (1863),   22   Cal.    620, 

3-487. 
United   Coal   Co.   v.    Canon   City    Coal 

Co.    (1897),   24    Colo.    116,    18-639. 
United    Merthyr   Collieries   Co.,    In   re 

(1872),    L.    R.    15    Eq.    (Eng.)    46, 

10-153. 
United  New  Jersey  Railroad   &  Canal 

Co.    v.    Standard    Oil    Co.    (1880), 

33  N.  J.  Eq.  123,  7-625. 
United    States   of   America   v.    Parrott 

(U.  S.  C.  C.  1858),  Fed.  Cas.    No. 

15,998,    1   McAllister   271,   7-335. 
United   States   v.   Blackburn    (1897),  5 

Ariz.   162,    18-684. 
United   States  v.  Homestead  Min.   Co. 

(U.   S.   C.  C.   1902),  117   Fed.  481, 

22-365. 
United    States    v.    Gear    (U.    S.    C.    C. 

1845),  3   McLean  571,    14-403. 
United   States  v.  Magoon   (U.  S.  C.  C. 

1843),  3  McLean  171,   10-84. 
United   States   v.   Marshall    Silver-Min- 
ing Co.   (1889),  129  U.  S.  579,  16- 

205. 
United   States  v.   Nelson    (U.   S.   C.   C. 

1878),  5  Sawy.   68,   14-381. 
United    States   v.   Van   Winkle    (U.    S. 

C.  C.   1902),  113  Fed.   903,   22-56. 
United    States   v.   Waltz    (U.    S.    C.    C. 

1875),  3   Sawy.   473,  4-205. 
Updegraff    v.    Lesem    (1900),    15    Colo. 

App.    297,   20-620. 
Upton  v.  Larkin    (1888),  7  Mont.   449, 

15-404. 
Upton  &  Swivel  v.  Brazier   (1864),  17 

Iowa  153,  9-243. 

Upton  v.  Weisling  (1903),  8  Ariz.  298, 
22-601. 


Uren     v.     Golden     Tunnel     Min.     Co. 

(1901),   24   Wash.   261,   21-243. 
Urpman  v.  Lowther  Oil  Co.   (1903),  53 

W.  Va.   501,  22-656. 
Utley  v.  Clark-Gardner  Lode  Min.  Co. 

(1878),  4   Colo.   369,  4-39. 


Valcalda  v.   Silver  Peak  Mines    (U.   S. 

C.  C.  1898),  86  Fed.  90,   19-233. 
Valley  City  Salt  Co.  v.  Brown   (1874), 

7  W.  Va.  191,  5-397. 
Vanatta  v.  Brewer  (1880),  32  N.  J.  Eq. 

268,   6-358. 
Van    Bokkelen   v.   Cook    (U.    S.    C.   C. 

1879),  5  Sawy.  587,   13-421. 
Van     Buren    v.     McKinley     (1901),    8 

Idaho  93,  21-690. 
Vandergriffs  Appeal  (1876),  83  Pa.  St. 

126,  9-397. 
Van  Dusen  v.   Star  Quartz-Mining  Co. 

(1869),  36  Cal.  571,  3-26. 
Van  Etten  v.  Eaton    (1869),  19  Mich. 

187,   12-12. 
Van  Etten  v.  Kelly  (1902),  66  Ohio  St. 

605,   22-269. 
Vansickle    v.    Haines    (1872),    7    Nev. 

249,   15-201. 
Van  Valkenburg  v.  Huff  (1865),  1  Nev. 

142,   9-467. 
Vanzandt   v.    Argentine   Min.    Co.    (U. 

S.    C.    C.    1880),    2    McCrary    642, 

7-634. 
Van  Zandt  v.  Argentine  Min.  Co.    (U. 

S.    C.    C.    1881),    2    McCrary    159, 

4-441. 
Venture  Oil  Co.  v.  Freets    (1893),  152 

Pa.  451,   17-543. 
Vermont    Mining    &    Quarrying   Co.    v. 

Windham  County  Bank  (1872),  44 

Vt.  489,  3-312. 
Vervalen  v.  Older    (1849),  8  N.  J.  Eq. 

98,   10-540. 
Verzan    v.    McGregor    (1863),    23    Cal. 

339,   2-565. 
Vice    v.    Fleming    (1827),    1    Y.    &     J. 

(Eng.)    227,    11-241. 
Vice  v.  Lady  Anson  (1827),  7  B.  &  C. 

(Eng.)    409,    11-244. 
Vietti  v.  Nesbitt    (1895),  22  Nev.   390, 

18-247. 
Vincent  v.   Watson    (1851),  18  Pa.   St. 

96,   13-388. 
Virginia,  City  of  v.  Chollat-Potosi  Gold 

&  Silver-Mining  Co.  (1886),  2  Nev. 

86,   14-120. 
Virginia    Coal    &    Iron    Co.     v.    Kelly 

(1896),  93  Va.  332,   18-395. 


854        Table  of  Cases  for  Morrison's  Mining  Reports. 


Von  Schmidt  v.  Huntington   (1850),  1 

Cal.  55,  6-284. 
Voorhis  v.  Freeman  (1841),  2  Watts  & 

S.    (Pa.)    116,    6-49. 

W. 

Wade  v.    South  Penn   Oil   Co.    (1898), 

45  W.  Va.  380,    19-605. 
Wagner  v.   Mallory    (1902),   169  N.   Y. 

501,  22-42. 
''Wake  v.  Hall   (1880),  L.  R.  7  Q.  B.  D. 

(Eng.)    295,    6-119. 
Wakeman   v.    Norton    (1897),   24   Colo. 

192,    18-698. 

Waldron  v.  Marsh   (1855),  5  Cal.  119, 

7-305. 
Walker    v.    Fletcher    (1804),    3    Bligh 

(Eng.)    172,  8-1. 
Walker  v.  Tiffin  Gold  &  Silver-Mining 

Co.    (1873),  2  Colo.  89,   10-572. 
Walker  v.   Tucker    (1873),  70  111.  527, 

8-672. 
Walker  Bros.  v.  Bamberger  (1898),  17 

Utah   239,    19-470. 
Wallace  v.   Silsby    (1880),  42  N.  J.  L. 

1,  3-390. 
Walling    v.    Miller    &    Co.     (1860),    15 

Cal.  38,  7-165. 
Walrath  v.  Champion  Min.  Co.   (1898), 

171  U.   S.   293,    19-410. 
Walton  v.  Wild  Goose  Mining  &  Trad- 
ing   Co.     (U.    S.    C.    C.    1903),    123 

Fed.    209,   22-688. 
Wando  Phosphate  Co.  v.  Gibbon  (1888), 

28   S.  C.  418,   16-55. 
Ward  &  Others'  Appeal   (1875),  81  1-2 

Pa.   St.   270,   5-666. 
Wardell  v.  Union  Pac.  R.  Co.    (1880), 

103  U.  S.  651,  7-144. 
Waring   v.    Cram    (1850),   1   Pars.    Eq. 

Cas.    (Pa.)    516,    12-280. 
Waring  v.   Crow    (1858),    11   Cal.    366, 

5-204. 
Warner  v.  Daniels   (U.  S.  C.  C.  1845), 

I  Woodb.   &  M.   90,   6-43  6. 
Washburn  v.  Alden   (1855),  5  Cal.  463, 

1-320. 

Washington  Natural  Gas  Co.  v.  John- 
son (1889),  123  Pa.  St.  576,  16- 
165. 

Waterloo  Min.  Co.  v.  Doe  (U.  S.  C.  C. 
1893),  56  Fed.  685,   17-586. 

Waterloo  Min.  Co.  v.  Doe  (U.  S.  C.  C. 
1897),  82  Fed.  45,   19-1. 

Waterman  v.  Porter  (U.  S.  C.  C.  1886), 

II  Sawy.  489,  15-687. 
Waterman  v.   Waterman    (U.   S.   C.  C. 

1886),   11    Sawy.   489,    15-687. 


Waters  v.  Stevenson  (1878),  13  Nev. 
157,    10-240. 

Watervale  Min.  Co.  v.  Leach  (1893), 
4   Ariz.   34,    17-568. 

Watson    v.    O'Hern     (1837),    6    Watts 

(Pa.)  362,  8-333. 
Watson  Coal  &  Mining  Co.  v.  Casteel 

(1881),  73  Ind.  296,  9-130. 

Watts  v.  Tibbals  (1847),  6  Pa.  St.  447, 
5-662. 

Watts  v.  White  (1859),  13  Cal.  321, 
13-11. 

Watts'  Appeal    (1875),  78  Pa.   St.   370, 

8-222. 
Weaver  v.  Conger  (1858),  10  Cal.  234, 

6-203. 
Weaver   v.    Eureka    Lake   Co.    (1860), 

15  Cal.  271,   1-642. 
Weber      v.      Reinhard      &      Eisenhara 

(1873),  73  Pa.  St.  370,   14-175. 
Webber  v.   Vogel    (1899),  189  Pa.   156, 

19-639. 
Weill  v.   Lucerne  Min.  Co.    (1876),  11 

Nev.   200,  3-372. 
Weimer  v.  Lowery  (1858),  11  Cal.  104, 

4-543. 
Weisman   v.    Smith    (1860),    59    N.    C. 

124,  11-152. 
Weist  v.  Grant  (1872),  71  Pa.  95,  2-28. 
Welch  v.  Garrett   (1897),  5  Idaho  639, 

19-193. 
Welch    v.    Renshaw    (1900),    14    Colo. 

App.  526,   20-399. 
Welland  v.  Huber   (1873),  8  Nev.  203, 

13-363. 
Wells   v.    Davis    (1900),    22    Utah   322, 

21-1. 
Wentworth  v.  Cock  (1839),  10  A.  &  E. 

(Eng.)    42,   2-470. 
Wentworth   v.    Turner    (1795),    3    Ves. 

(Eng.)   3,  7-249. 
Wesley  Coal  Co.  v.  Healer   (1876),  84 

111.  126,  1-68. 

West  v.  Humphrey  (1890),  21  Nev.  80, 
17-367. 

West  v.  Lanier  (1849),  9  Humph. 
(Tenn.)     762,    12-184. 

West  Cumberland  Iron  &  Steel  Co.  v. 
Kenyon  (1879),  L.  R.  11  Ch.  D. 
(Eng.)    782,    15-203. 

Westcott  v.  Minnesota  Min.  Co.  (1871), 
23  Mich.  145,  6-336. 

Westmoreland  Coal  Co.'s  Appeal 
(1877),   85   Pa.    St.   344,    10-394. 

Weston  v.  Alden  (1811),  8  Mass.  136, 
8-82. 


Table  of  Cases  foe  Morrison's  Mining  Reports. 


855 


West  Point  Iron  Co.  v.  Reymert  (1871), 

45  N.  Y.  703,  7-528. 
West  Virginia  Transp.  Co.  v.  Volcanic 

Oil  &  Coal   Co.    (1872),   5   W.   Va. 

382,   5-389. 
Wettengel  v.  Gormley    (1894),  160  Pa. 

559,   18-93. 
Wettengel  v.  Gormley   (1898),  184  Pa. 

354,    19-213. 
Whaley  v.   Brancker    (1864),   10  L.   T. 

N.  S.    (Eng.)    155,   8-29. 

Whalley  v.  Ramage   (1862),  10  Wkly. 

Rep.  (Eng.)  315,  8-52. 
Wheatley  v.  Baugh    (1855),  25  Pa.  St. 

528,    13-374. 
Wheatley  v.   Chrisman    (1855),   24  Pa. 

St.  298,  11-24. 
Wheatley  v.  Westminster  Brymbo  Coal 

Co.    (1869),    L.    R.    9    Eq.    (Eng.) 

538,    8-553. 
Wheeler  v.   Floral  Mill  &  Mining  Co. 

(1874),  9  Nev.  254,  2-622. 

Wheeler    v.    Garcia    (1869),    40    N.    Y. 

584,    13-481. 
Wheeler  v.  Johnson    (1875),  21  Minn. 

507,  2-642. 
Whitaker  v.  Brown   (1863),  46  Pa.  St. 

197,    5-656. 
White  v.  Lee    (1889),  78  Cal.  593,   17- 

209. 

White     v.     Lupton      (1808),     15     Ves. 

(Eng.)    432,   2-430. 
White    v.    Todd's    Valley    Water     Co. 

(1857),   8   Cal.   443,   4-536. 

White    v.     Toncray     (1838),    9    Leigh 

(Va.)    347,    2-463. 
Whiting  v.  Hill    (1871),  23  Mich.  399, 

6-692. 
Whitney  v.   Buckman    (1864),   26   Cal. 

448,    10-428. 
Whittingham    v.    Andrews     (1692),    4 

Mod.   (Eng.)   143,  5-198. 

Wickersham  &  Keith  v.  Chicago  Zinc 
Co.    (1877),   18   Kan.   481,   5-536. 

Wiggins  v.   McDonald    (1861),  18  Cal. 
126,  2-564. 

Wilcox  v.  Lucas   (1876),  121  Mass.  21, 

3-380. 
Wild  v.  Holt  (1842),  9  M.  &  W.  (Eng.) 

672,    12-182. 
Wild  v.  Milne  (1859),  26  Beav.  (Eng.) 

504,   11-207. 

Wild  v.  New  York  &  A.  Silver-Mining 
Co.   (1874),  59  N.  Y.  644,   1-413. 

Wilkins  v.  Monson  Consol.   Slate    Co. 
(1902),  96  Me.   385,   22-185. 


Wilkinson,    Carter    &    Co.    v.    Stewart 

(1877),   85   Pa.   St.   255,   13-1. 
Wilkinson   v.    Proud    (1843),   11   M.   & 

W.    (Eng.)    33,   12-269. 
Wilkinson    v.    Stafford    (1789),    1    Ves. 

Jr.    (Eng.)    32,   14-522. 
Williams    v.    Attenborough     (1823),    1 

Turn.  &  R.   (Eng.)   70,  2-410. 

Williams    v.    Bagnell    (1866),    12    Jur. 

N.  S.    (Eng.)    987,  13-686. 
Williams,    Commonwealth    ex    rel.    v. 

Bonnell  (1871),  8  Phila.  (Pa.)  534, 

15-14. 

Williams,  Commonwealth  ex  rel.  v. 
Wilkesbarre  Coal  Co.  (1872),  29 
Leg.   Int.    (Pa.)    213,    15-31. 

Williams  v.  Chicago  Coal  Co.  (1871), 
60  111.  149,    1-397. 

Williams  v.  Gibson  (1887),  84  Ala.  228, 

16-243. 
Williams   v.    Groucott    (1863),   4    B.    & 

S.    (Eng.)   149,   13-632. 
Williams  v.  Guffy   (1896),  178  Pa.  342, 

18-478. 
Williams  v.  Hanna  (1872).  40  Ind.  535, 

15-73. 
Williams  v.  Long  (1900),  129  Cal.  229, 

20-738. 
Williams  v.  Pomeroy  Coal  Co.   (1882), 

37  Ohio  St.  583,  6-195. 

Williams  v.  Rowlands  (1861-62),  31  L. 
J.  Ch.    (Eng.)    265,  9-644. 

Williams    v.    Schmidt    (1870),    54    111. 

205,  2-23. 
Williams    v.    Spurr    (1872),    24    Mich. 

335,  7-17. 
Williams  v.   Summers    (1874),  45  Ind. 

532,    15-246. 
Williamson    v.    Jones    (1897)",    43    W. 

Va.  562,   19-19. 
Willis  v.  Forney  (1853),  45  N.  C.  256, 

14-389. 
Wilmington    Coal-Mining    &    Manufac- 
turing Co.  v.  Lamb   (1878),  90  111. 

465,    15-56. 
Wilmington    Star-Mining   Co.   v.    Allen 

(1880),   95   111.   288,   9-106. 
Wilms    v.    Jess    (1880),    94     111.     464, 

14-56. 
Wilson    v.    Fitch    (1871),    41   Cal.    363, 

9-155. 
Wilson  v.  Henry   (1874),  35  Wis.  241, 

1-152. 
Wilson  v.  Henry   (1876),  40  Wis.  594, 

1-157. 
Wilson    v.    Waddell     (1876),    L.    R.    2 

App.  Cas.    (Eng.)    95,    14-25. 


856        Table  of  Cases  for  Morrison's  Mining  Reports. 


Winans  v.  Hassey  (1874),  48  Cal.  634, 

2-284. 
Windfall  Mfg.  Co.  v.  Patterson  (1897), 

148  Ind.  414,  18-674. 
Winter   v.    Belmont    Min.    Co.    (1879), 

53  Cal.  428,   13-595. 
Wiseman   v.    McNulty    (1864),   25   Cal. 

230,   6-326. 
Wiser  v.  Lawler  (1903),  189  U.  S.  260, 

22-630. 
Wixon   v.    Bear   River   &   A.   Water   & 
Mining  Co.  (1864),  24  Cal.  367,  1- 
656. 
Wolf    v.    Marsh     (1880),    54    Cal.    228, 

3-204. 

Wolf  v.   St.  Louis   Independent  Water 

Co.    (1858),    10    Cal.    541,    10-636. 

Wolf  v.   St.  Louis  Independent  Water 

Co.    (1860),    15    Cal.    319,    10-653. 

Wolf     Creek     Diamond     Coal    Co.     v. 

Schultz     (1872),    71    Pa.    St.    180, 

3-95. 

Wolfley   v.   Lebanon  Min.   Co.   of  New 

York    (1878),  4  Colo.  112,   13-282. 

Wolverton   v.   Nichols    (1886),   119    U. 

S.    485,    15-309. 
Wood  v.  Marquis  of  Londerry    (1847), 

10  Beav.    (Eng.)    465,   6-464. 
Wood    v.    Morewood     (1841),    3    Q.    B. 

(Eng.)   440,  10-77. 
Wood    v.    Richardson    (1868),    35    Cal. 

149,    12-121. 
Woodbury  v.   Deloss    (1873),   65   Barb. 
(N.  Y.)   501,  12-144. 

Wood   Hydraulic   Hose   Mining   Co.    v. 
King     (1872),    45    Ga.    34,    3-618. 

Woodward  v.  Mitchell  (1895),  140  Ind. 

406,    18-158. 
Woodworth  v.  McLean   (1889),  97  Mo. 

325,    17-194. 
Woolman  v.  Garringer  (1872),  1  Mont. 

535,  1-675. 
Worden  v.   Dodge   (1847),  4  Den.    (N. 

Y.)    159,    2-116. 
Wren  v.  Kirton   (1802),  8  Ves.   (Eng.) 

502,  2-408. 
Wright  v.   Chestnut  Hill  Iron-Ore  Co. 

(1863),  45   Pa.   St.   475,    12-528. 

Wright    v.    Compton    (1876),    53    Ind. 

337,    2-189. 
Wright  v.  Killian   (1901),  132  Cal.  56, 

21-211. 


Wright  v.  Oroville  Gold,  Silver  &  Cop- 
per-Mining Co.  (1870),  40  Cal.  20, 
3-558. 

Wright  v.  Rawson  (1879),  52  Iowa 
329,    11-3. 

Wright  v.  Warrior  Run  Coal  Co. 
(1897),  182  Pa.   514,    19-102. 

Wynkoop  v.  Seal  (1870),  64  Pa.  St.  361, 
13-493. 

Wyrley  &  Essington  Canal  Co.  v.  Brad- 
ley (1806),  7  East  (Eng.)  368, 
2-89. 

Y. 

Yahoola  River  &  C.  C.  Hydraulic  Hose 

Mining  Co.  v.  Irby   (1869),  40  Ga. 

479,    14-460. 
Yandes  v.  Wright   (1879),  66  Ind.  319, 

14-32. 
Yankee    Jim's    Union    Water    Co.     v. 

Crary    (1864),  25  Cal.   504,    1-196. 
Yarwood  v.  Johnson    (1902),  29  Wash. 

643,    22-398. 
Yellow     Jacket     Silver-Mining    Co.    v. 

Stevenson    (1869),   5  Nev.    224,   3- 

545. 
York   v.    Davidson    (1901),   39   Or.   81, 

21-452. 
Youghioghney     Iron    &    Coal     Co.    v. 

Smith    (1870),  66  Pa.   St.  340,   10- 

139. 
Youghiogheny  River  Coal  Co.  v.  Hop- 
kins   (1901),  198  Pa.   343,  21-188. 
Youghiogheny     Shaft     Co.     v.     Evans 

(1872),  72  Pa.  St.  331,  3-102. 
Young  v.    Forest   Oil  Co.    (1899),   194 

Pa.   243,  20-345. 
Young    v.    Northern    Illinois    Coal    & 

Iron    Co.     (U.    S.    C.    C.    1880),    9 

Biss.    (U.   S.)    300,    10-596. 
Youngman  v.  Linn   (1866),  52  Pa.  St. 

413,   2-443. 
Yreka  Mining  &  Milling  Co.  v.  Knight 

(1901),  133  Cal.  544,  21-478. 
Yunker  v.  Nichols   (1872),  1  Colo.  551, 

8-64. 

Z. 

Zeckendorf  v.  Hutchison    (1871),  1  N. 

M.    476,    9-483. 
Zollars   v.   Evans    (U.   S.   C.   C.   1880), 

2  McCrary  39,  5   Fed.  172,  4-407. 


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